Long-Run Effects of Dominion v. Fox
Neutral Reportage Dismissed Out of Hand, But Sullivan Gets a Boost
A record 240 members attended our Zoom call days after the settlement of the Dominion v. Fox case last month. And, of course, much has been written – and speculated – about the reasons for the settlement, the effect it will have on Fox’s operations, whether it was the cause of Tucker Carlson’s firing, the influence it will have on the Smartmatic and other similar cases still pending, the amount insurers rather than Fox will be paying and whether insurance companies will deny coverage, what a jury might have done, the amazing internal Fox emails which have been disclosed, and the contents of redacted discovery we haven’t yet seen. Many of these issues will be discussed in detail at a plenary at our Virginia Conference in early October by a star-studded panel, including Floyd Abrams, Lee Levine, RonNell Andersen Jones, and counsel from the two parties.
But what I will focus on here are what I consider two long-term effects of the case, which will, to some degree, affect libel litigants going forward. The first is what I consider a lost opportunity – a ruling which seemed to be devastating to Fox’s defense. This was the trial judge’s decision to dismiss any argument based on the neutral reportage privilege – made worse the next day by his ruling not to allow Fox to even raise newsworthiness at trial. To me, the issue of what journalists do when reporting on outlandish and unfounded charges by one newsworthy figure against another is one of the few areas where good journalism and the law diverge.
Here, in a highly visible and significant case, where this defense fit perfectly, was an opportunity to correct this gap. But the judge, largely relying on a 31-year-old precedent from a mid-level upstate New York appellate court, gave short shrift to the neutral reportage solution, and didn’t even allow the jury to decide whether its conditions, including whether Fox endorsed the garbage about voting machine fraud, were met.
From the start, Fox’s public position in the case was that it was protected by the First Amendment: simply broadcasting/repeating newsworthy statements by the president and his acolytes about the presidential election – what is more newsworthy than that? Of course, we know that the First Amendment doesn’t protect all speech, and that the doctrine of republication – almost always strictly followed by judges – holds that a repeater of a libelous statement is as liable for it as the original speaker. Put more pithily, “Tale bearers are as bad as tale makers.” But what the Fox PR folks were saying, translated to legalese, is that the neutral reportage privilege ought to apply, and that newsworthiness is an important factor when weighing liability in a fact situation such as this.
Indeed, I always have found that one of the toughest calls in vetting articles came when an article would say, for instance, “the Governor accused the Senator of bribery.” I would ask whether the reporter believed the charges, and the reporter inevitably would reply “absolutely not, but that the Governor made them is newsworthy so we need to publish.” When I expressed doubt on account of the republication doctrine, they would say, “but we can indicate that the statements are false, that we don’t believe them.” Clever, I would reply, but there’s a problem: then we’re handing actual malice evidence over to the potential plaintiff on a silver platter – saying in effect that we have serious doubts as to the very charges we are repeating. In the end, I would say – with a combination of bluster and trepidation – sure, go ahead and publish; I don’t see how you have a choice, and we’ll convince a judge that the law here doesn’t make sense. After all, in this scenario, the outrageousness of the defamatory statement does not doom the point – it is the point.
But many lawyers have tried to convince judges of the logic of that position and have failed. See, for example Norton v. Glenn (2004) (in a local Pennsylvania election, outrageous and vile charges were made by candidate BS against candidate Good, and were reported on by the local newspaper; Good sued both BS and the newspaper; BS quickly settled, but the paper filed motions to throw out the case. The public got it: they voted in the victim, Good, and voted out the bloviating BS. But the state’s highest court didn’t get it; it allowed the case to go to trial on the ground that the paper republished defamatory remarks which it didn’t believe were true.)
In any event, there are surprisingly few cases of this type. I think a prime reason is that it is so counterintuitive. Even someone libeled in this way must think that surely the media had a right, and usually does, republish even untrue statements made by public figures; as long as the media entity doesn’t endorse the accusations, a public figure realizes she is fair game. Second, judges faced with this dilemma often fashion a way out. They perform judicial gymnastics to conclude that because of the entire context of the article, including its suggestion that the charges it repeated were untrue, there is no defamatory meaning. Or that when both sides are given, it’s all opinion, since there’s no determinative factual conclusion. Or that it’s fair comment or somehow a fair report of official statements, even where those doctrines don’t strictly apply.
But why has the law not followed common sense and normal journalistic practice? That’s what Second Circuit Chief Judge Irving Kaufman did in 1977 when he gave birth to the neutral reportage defense in Edwards v. National Audubon Society. The New York Times had run a typical article on a scientific debate, and in doing so quoted one side accusing the other as being “paid liars” for the chemical industry regarding the effect of pesticides on birds. Judge Kaufman understood the role of the press in this situation, and in the following words clearly distinguished neutral reportage from actual malice:
When a responsible, prominent organization like the National Audubon Society makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter’s private views regarding their validity. What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth.
Note that this defense is hardly absolute. Even if the accusation is newsworthy, it hinges on two conditions: first, that the original speaker is prominent and responsible, and second, that the media repeated the charges accurately and disinterestedly, that is neutrally, not endorsing or supporting them. What should have happened in Dominion, even in the run-up to trial, is that the judge should have allowed the neutral reportage defense to be argued as a perfect fit for the facts of this case and with the secondary result of bringing much-needed recognition to a badly-needed defense.
That would have left it to the jury to decide whether sources such as Rudy Giuliani and Sydney Powell were “responsible” (love to be a bug on the wall for that discussion) and whether Fox endorsed their accusations or reported them neutrally. That question, in turn, might well have depended on the judge’s instruction as to whether the jury had to examine each of the 20 alleged libelous statements separately or whether they could decide based on the gestalt of Fox’s coverage throughout the months following the election – and whether the jury would have followed that instruction.
Alas, we will never find out – and I would bet pretty confidently that if Fox paid so much not to go through trial in this case, it will settle the Smartmatic case as well. But my unfortunate take-away, in a broader context than its effect on these parties, is that the court’s facile dismissal of the neutral reportage defense was a huge missed opportunity.
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Second, what was the case’s effect on libel litigation, writ more broadly? Many commentators have asked me whether the settlement will spawn more libel cases or will chill publishers and broadcasters in what they air. My answer is a clear-cut no. To be sure, a settlement close to $800 million will have plaintiffs’ lawyers licking their proverbial chops. But it is obvious that the facts in this case are sui generis. A typical news story is not usually the subject of hundreds of emails among the top executives of a media organization, let alone emails excoriating the sources’ reliability, much less setting forth how their business prerogatives should be weighed against the truth – and certainly not numerous emails stating they don’t believe the premise being aired. Just as we haven’t seen the Hulk Hogan case, with its absurd outcome, give rise to an onslaught of invasion of privacy cases, I really don’t expect this result to open the floodgates to more defamation litigation.
And, indeed, as MLRC data show, a large bump in libel suits has already occurred. This significant increase in the filing of libel suits happened not because of any one case, but more likely because of the anti-press haranguing by the former president. Blowing hot air about fake news, enemy of the people, and opening up the libel laws so that “we” can make money (he seems to forget that he is a repeat libel defendant) was probably responsible for that increase. Add to that perfect storm the polarization in the country which he fostered, including the demonization of the purportedly too-liberal media by the right wing, and that explains a bump that has taken place starting in 2015, not one which will start or be affected by the events of April 2023.
In my view, somewhat ironically, the result of this loss for the media will be a huge potential gain for the media. As has been discussed at numerous MLRC conferences and Zooms, Times v. Sullivan has been under attack from many quarters recently, including from that former president and two justices of the Supreme Court. Indeed, rebutting that assault was the point of MLRC’s White Paper, issued a year ago, arguing for the retention of that landmark precedent.
One of the arguments against Times v. Sullivan is that it sets too high a bar, that it is virtually impossible for plaintiffs to win libel cases. Had Fox won, either on motion or by a jury verdict, it would have added a gust of wind to the sails of those seeking Sullivan’s downfall. If you can’t win with these set of facts, they would say, you can never win – and that ought to prompt a revisiting and relaxing of the actual malice standard. But now that plaintiff did pretty well in this case, that argument is not usable. The result shows that under the right circumstances plaintiffs can meet the intentionally high standard – in short, that the Sullivan standard works. So Dominion v. Fox might ironically have as its legacy the continued retention of this precedent and might just auger the end of the attack against it.
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To conclude, a few thoughts on the press coverage of the case and on our interactions with reporters, non-media lawyers, judges and others about it. First, the reportage highlighted the longstanding problems with the words the Supreme Court chose to use in the 1964 Sullivan opinion itself. For all its beauty, the terms “actual malice” and “reckless disregard” have continually caused confusion and misunderstanding. Actual malice has nothing to do with malice, ill-will or spite, yet that is the impression its use leaves. Likewise, recklessness sounds synonymous with negligence – and that’s precisely not what needs to be proven in a public figure case; on the contrary it’s the test for private figures.
So these terms should never be used because they give judges, jurors and the public a completely wrong idea of what is at issue in a public official / figure case. As then-Judge Ginsburg said in Tavoulareas v. Piro, “In the libel area, particularly, it is not a large exaggeration to suggest that jurors ‘can easily misunderstand more law in a minute than the judge can explain in an hour.’” I emphasize the language SCOTUS came up with a few years later in post-Sullivan cases: the standard is whether defendant published with “serious doubts” for the truth or with a “conscious awareness of probable falsity.” Using those terms will go a long way to clarifying what the test is and explaining the burden plaintiffs have to meet in these cases.
Second, in the Dominion case, discussion about the settlement inevitability led to questions about the apology. Did Fox apologize; did they pay not to apologize; is the payment of a huge sum an acknowledgement of guilt? Inherent in these questions is the notion that if the case had gone to trial, the verdict might have included an order for Fox to apologize, and that was lost by the agreement by Dominion to settle just for money. But it’s important to tell people that just isn’t so!
Neither a judge nor a jury can make a media entity such as Fox – or indeed anybody – say pretty much anything, let alone issue an apology. Just as the First Amendment doesn’t allow government to block citizens or companies from saying something (see the Pentagon Papers) it also cannot compel speech (see Tornillo v. Miami Herald). So the notion that a settlement precluded the opportunity for an apology is quite simply based on an unconstitutional premise. Of course, a settlement agreement might have mandated such an apology, but Fox successfully bargained against such a term.
Finally, I would just note one point that was underreported in the coverage. Delaware law apparently requires unanimity among jurors even in a civil case. Thus, all 12 jurors who had been selected – after a very secretive voir dire – had to agree on a verdict. This is different from many other states, such as New York and Texas, which just require 5/6 of a jury to agree on a civil case verdict (or, in this case, just 10 of 12 jurors). I would have thought this was a huge risk factor for Dominion: a fear that one or two jurors could force a hung jury, or could have had the leverage to significantly negotiate down the verdict amount. Again, as with so many of the questions we all were asking, because of the settlement, we’ll never know.
The opinions expressed in this column are those of the author and not the MLRC. We welcome responses at email@example.com; they may be printed in next month’s MediaLawLetter.
George Freeman is executive director of the Media Law Resource Center.