Fox News, the preeminent conservative cable channel in the United States, is contending with allegations that fact-checking former President Donald Trump is “bad for business,” according to its director, Suzanne Scott. Amid accusations that Trump and his lawyer Rudy Giuliani have grown “increasingly delusional” with their election fraud claims, the channel faces the prospect of a publicity crisis in the coming weeks.
At the heart of the matter is a lawsuit filed by Dominion, a voting machine technology company, which argues that Fox News knowingly misled the public about election fraud in November 2020. Dominion is seeking $1.6 billion in damages for reputational harm and threats faced by its staff. The case, set to begin substantively before a jury on Tuesday, has significant implications for freedom of the press and the nature of newsworthiness.
The trial is likely to see testimony from key Fox News figures, including Rupert Murdoch, Tucker Carlson, and Sean Hannity. The crux of the issue is whether Fox News presenters intentionally disseminated falsehoods, thereby warranting substantial compensation to Dominion, or whether the uncritical reporting of Trump’s claims falls under the purview of press freedom.
Lyrissa Lidsky, a media law professor at the University of Florida, says that Fox News is poised for reputational damage, with the case providing a unique glimpse into the network’s editorial processes and mental state. While the evidence against the network has emerged from internal communications, the trial’s outcome remains uncertain. Ultimately, the case’s resolution hinges on determining responsibility for the statements made on television, with other factors remaining extraneous.
During a preliminary hearing, the presiding judge determined that Dominion’s lawyers should refrain from mentioning the storming of the Capitol on January 6, 2021, to avoid influencing the jury with unanticipated consequences of Fox News’ coverage.
The network’s predicament began following the November 2020 election, when it projected Arizona in favor of Democratic candidate Joe Biden based on exit polls. Consequently, Trump’s seemingly inevitable defeat unfolded on his preferred network, prompting some supporters to flock to far-right channels Newsmax and One American News Network (OANN). In response, Fox News commentators embraced Trump’s fraud allegations. Maria Bartiromo notably conducted interviews with attorney Sidney Powell, who claimed to represent Trump and accused Dominion’s machines of facilitating fraud.
To succeed in their lawsuit, Dominion must demonstrate “actual malice,” a high legal standard established in a landmark 1964 Supreme Court ruling involving The New York Times and Alabama Police Commissioner L.B. Sullivan. This precedent has since provided the press with considerable protection from defamation claims.
David Logan of Roger Williams University argues that the press’s protection from defamation claims has an unintended consequence: incentivizing ignorance. He contends that the 24-hour news cycle on cable channels has sullied public discourse. In his article, “Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan” which was cited by Chief Justice Neil Gorsuch in 2021, Logan suggests reevaluating the broad interpretation of “public person” in the context of defamation.
At least two conservative chief justices appear eager to revisit the First Amendment’s interpretation concerning press freedom. Professor Lyrissa Lidsky warns that the potential rollback of press protections should concern both liberal and conservative media, as such changes would affect all sides.
Logan points out that the extensive definition of “public person,” who must endure heightened levels of damaging coverage, is no longer viable. He cites the example of parents of children killed in the 2012 Sandy Hook Elementary School massacre, who were considered public figures when they spoke out about gun policy. Despite this classification, they won a libel case against conspiracy theorist Alex Jones of Infowars, resulting in billion-dollar damages and his subsequent bankruptcy.
For Fox News, the potential maximum damages of $1.6 billion—though unlikely—would be manageable, as it equates to the annual profit of parent company Fox Corp. However, the case’s broader implications could reshape the media landscape in the United States.
