Protecting the news media


One of the most closely watched cases so far this year involved Dominion Voting Systems’ lawsuit against Fox News. The network’s on-air personalities claimed that Dominion electronic voting machines used during the 2020 presidential election were not only hacked, but deliberately flipped votes from Donald Trump to Joe Biden. Dominion claimed Fox News libeled it, and sought $1.6 billion in damages.

Moments after jury selection was completed, Fox News agreed to a settlement of $787.5 million, one of the largest ever made in a defamation case. Through months of discovery of evidence, much of it withheld by Fox executives, Dominion finally uncovered numerous email messages that revealed how Fox personalities like Tucker Carlson, Sean Hannity, Lou Dobbs, and even billionaire owner Rupert Murdoch admitted that there was nothing wrong with the Dominion voting machines.

Exhibits included this from Tucker Carlson in January 2021: “We are very, very close to being able to ignore Trump most nights. I truly can’t wait. I hate him passionately.” And Murdoch, who wrote, “Maybe Sean [Hannity] and Laura [Ingraham] went too far. All very well for Sean to tell you he was in despair about Trump, but what did he tell his viewers?”

Delaware State Court Judge Eric M. Davis accepted as matters of fact these statements as defamation.

Could Dominion have won its suit had the case gone to trial? A Supreme Court case from 60 years ago makes it very difficult to win a libel award against a news outlet. The unanimous landmark decision in New York Times v. Sullivan stated that for public officials to win libel suits, they must demonstrate the news outlet acted with “actual malice,” that is, that its reporters knowingly printed material that “was false or with reckless disregard of the truth.” The court later broadened the public official category to include public figures.

The dispute at the time centered on an advertisement placed in the Times that included several misleading and false statements regarding the Montgomery, Ala., police department, which was overseen by L.B. Sullivan, a city commissioner. Sullivan claimed that although the ad did not name him, it falsely asserted that police had brutally beaten civil rights demonstrators, including Dr. Martin Luther King Jr. As it turned out, much of the ad was fabricated. The state court ruled for Sullivan, and awarded him $500,000 in damages against the Times.

To protect news outlets like the New York Times on First Amendment grounds of a free press, the Supreme Court reversed the decision, and established the actual malice test. 

At the time, social media as we know it today did not exist. But the generality of Justice William Brennan’s Sullivan opinion makes it clear that all social media, like Facebook, Instagram, and TikTok, are subject to the Sullivan actual malice rule. The user who posts a defamation is also liable for inclusion in a legal action.

Dominion claims that had its case against Fox News gone to trial, its attorneys would have had no difficulty proving actual malice, given Judge Davis’s determination that the numerous email messages that Fox turned over to Dominion proved it defamed the company.

But now, we’ll never know because of the settlement. Judge Davis was prepared to move forward after he determined that Dominion Voting Systems is “a limited-purpose public figure,” even though it was not a person but a corporation. Dominion, he said, fit the requirement under Sullivan.

But wait, maybe we will learn more soon: Additional cases are in the pipeline. Dominion has also sued Mike Lindell, the MyPillow executive and longtime Trump supporter, who has long espoused the same claims of presidential election fraud due to rigging by Dominion’s voting machines.

Dominion has lawsuits pending against Trump lawyers Sydney Powell and Rudy W. Giuliani, and Newsmax, an extremist news outlet that mimicked Fox News assertions against the voting machine company. To avoid a trial, Newsmax has publicly apologized to Dominion.

But there’s more coming. Like Dominion, another election technology company, this one called Smartmatic, which was only active in Los Angeles County, has filed suit against Fox News, Newsmax, and One America News Network. Those outlets claimed that Smartmatic and Dominion worked together to develop “secret vote-flipping technology under the regime of now-dead Venezuelan President Hugo Chavez and manipulated the results of the 2020 presidential election.” 

How all this will play out is unknown. The news outlets claim they were merely reporting the news of the aftermath of a presidential election. But the exhibits that Dominion planned to bring to trial belie that assertion.

The main question is whether the actual malice standard is too strict. Should it be easier to win a libel suit without having to prove that the assertions are knowingly or recklessly false?

Two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have recently claimed that the standard is too high a bar to reach. Thomas wrote in 2019, “We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.”

Thomas was echoing candidate Donald Trump, who said as much when running for president in 2016: “I’m going to open up our libel laws, so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”

The Dominion case against Fox News, now resolved, will not lead to any changes, but these other cases may well do so in the near future.


Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for more than 40 years, and is the author of “The Supreme Court and Constitutional Law,” now in its third edition.