The Big Issue in Dominion v. Fox Has Already Been Decided

The jury trial in the libel and slander case of Dominion Voting Systems v. Fox News Network is now less than two weeks away. The consensus among defamation law experts seems to be that the “big issue” in this case is whether Fox acted with “actual malice,” a requirement established by the seminal First Amendment case of New York Times v. Sullivan back in 1964. Public figures can’t win defamation suits unless they can prove the defendant made a false statement about them with actual malice, generally defined as knowledge of falsity or, at a minimum, “reckless disregard” for the truth, which is the equivalent of a high degree of awareness that the statement at issue is probably false. In most cases, that’s a very difficult thing to prove, and many defamation cases fail due to an inability of the plaintiff to prove actual malice. Dominion’s case against Fox, however, is anything but ordinary. From my perspective, the only real chance Fox had of winning this case at the trial level was not to convince the jury that it failed to act with actual malice (an unlikely prospect) but rather to convince the jury that it was merely broadcasting newsworthy allegations made by others and that it was not necessarily endorsing those allegations. In a recent pretrial ruling, however, the court found that a reasonable jury could only conclude that Fox did, in fact, endorse the conspiracy theories and adopt the accusations against Dominion as its own. The jury won’t be allowed to even consider the issue. That means this case is essentially done. Dominion wins. The only question is how high the judgment amount will be.

Prior to the court’s recent ruling on Dominion’s motion for summary judgment, Fox had a glimmer of hope. After all, Dominion is the party with the burden of proof, not Fox. It is Dominion that needs to prove that the statements made about Dominion on Fox’s broadcasts were false and that Fox is responsible for making them, even if the statements were made only by guests on Fox programming. Even with all the media coverage about those behind-the-scenes text messages by Fox hosts in which they reveal their true feelings about the outlandish and unsupported accusations against Dominion being made by the likes of Sidney Powell and Mike Lindell, at least they could argue to the jury that when a member of the President’s legal team makes a public accusation that a manufacturer of voting machines was complicit in a giant scheme to flip votes and steal an election, that is a newsworthy event that Fox should cover, regardless of whether the accusation is true or false; the accusation itself is news. Sadly for Fox, that ship has sailed. The court has already entered partial summary judgment establishing not only that the statements about Dominion made by Fox guests were false, but that Fox is responsible for republishing those statements as if they were Fox’s own accusations against Dominion.

If and when this case gets appealed, I expect the justices to be less interested in whether there was sufficient evidence of actual malice and more interested in the issue of republication. By giving a platform to people like Sidney Powell and Rudy Giuliani, did Fox “republish” those statements (e.g., by endorsing them, failing to seek supporting evidence, or “pushing a narrative”) or was it merely reporting on what newsworthy individuals were saying about a newsworthy company? The general rule relating to republication is that one who repeats a defamatory statement is liable for defamation to the same extent as the original defamer. Under the Restatement (Second) of Torts (see Section 581 cmt. g), television broadcasters should usually be held liable for republication because they typically play an active role in deciding what to air. The idea behind this is that one shouldn’t be able to avoid defamation liability simply by pointing out that the defamatory statement was first made by someone else. Still, all the republication doctrine does is satisfy the publication element of a defamation claim; a plaintiff still must show that the republisher communicated a statement carrying defamatory meaning, and that it did so with either actual malice or negligence with respect to the truth. The question thus becomes: what, exactly, was the message Fox was sharing with its audience? By broadcasting its-over-300x197the false and defamatory statements of others, was Fox adopting those statements as its own, or was it merely conveying to its audience that certain individuals close to the President were making these assertions?

If the typical Fox viewer would conclude upon watching the broadcasts at issue only that certain individuals not affiliated with Fox were making certain accusations against Dominion, and not that Fox was reporting these accusations as if they were reliable and truthful statements of fact, then the message being communicated would be not only true but lacking in defamatory meaning. Various guests on Fox shows were, in fact, making these accusations against Dominion, so Fox arguably should have the right to report to its audience that such accusations were being made, provided it does so in a manner that doesn’t convey approval of those statements or a belief in their truth.

Sometimes what’s newsworthy is the fact that a particular statement was made, not whether the statement is true or false. (For you lawyers out there, this is basically the same idea as a “verbal act” that is not considered hearsay because its relevance does not depend on the truth or falsity of the statement). Some states recognize a “neutral reportage” privilege, which protects the “accurate and disinterested reporting” of charges on matters of public concern made by a “responsible, prominent” party against a public figure:

Succinctly stated, when a responsible, prominent organization…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. See Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); Medina v. Time, Inc., 439 F.2d 1129 (1st Cir. 1971). 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. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. Cf. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.

(See Edwards v. Nat’l Audubon Soc., Inc., 556 F.2d 113, 120 (2d Cir. 1977)). The Eighth Circuit has held that the neutral reportage doctrine may immunize a reporter from liability even if the reporter used the statement for one-sided advocacy rather than a neutral and disinterested presentation. “[W]e focus on whether the reports were accurate reflections of what was said or done. Evidence of the author’s general disposition toward his topic does not establish whether he espoused each particular allegation.” (See Price v. Viking Penguin, Inc., 881 F.2d 1426, 1434 (8th Cir. 1989)).

The Dominion case seems like a pretty good fit for application of the neutral reportage privilege. Note, however, that the privilege only protects the “accurate and disinterested reporting” of what others have said. The doctrine doesn’t apply if the publisher “espouses or concurs in” or “deliberately distorts” the defamatory statements. (See, e.g., Edwards v. Nat’l Audubon Soc’y, 556 F.2d at 117). This means that even if the privilege applied here, it would not protect Fox if it was found to have reported false claims with great enthusiasm or in some manner calculated to convey that it shared in the views of the speakers. Here’s how Dominion argued to the court in its summary judgment brief that Fox’s reporting was not disinterested:

Fox hosts took sides. A review of the transcripts shows Fox espousing and concurring in the statements. To cite just the first three: “I know that there were voting irregularities.” (Maria Bartiromo, November 8, ¶179(a)). “It’s stunning.” (Lou Dobbs, November 12, ¶179(b)). “This is the culmination of what has been an over a four-year effort to overthrow this president.” (Lou Dobbs, November 13, ¶179(c)). Fox hosts also deliberately distorted the charges by not presenting the full picture. As discussed at length above, Fox knew the charges were false yet failed to provide viewers with any of the extensive evidence disproving them.

The court agreed. It held that the neutral reportage doctrine does not apply in New York, and even if it did, it wouldn’t protect Fox because “the evidence does not support that FNN conducted good-faith, disinterested reporting.” And that’s why Dominion is poised to win big at trial. All that’s left for the jury to decide is which Fox entity or entities should be held responsible, whether they knew the false statements about Dominion were false or likely to be false, and how much they should be ordered to pay.

Personally, I think the court should have allowed the jury to decide whether Fox conveyed a false and defamatory message to its audience. I expect Fox’s lawyers will be arguing this on appeal. To me, the big issue at trial should have been whether Fox’s coverage was neutral, disinterested, and/or presented in such a way as to reflect that it was merely covering newsworthy statements rather than adopting those statements as its own. Did Fox merely report the news or did it espouse or openly concur in the false accusations being presented? From what I’ve seen of the evidence so far, the jury probably would have agreed with the judge and concluded that Fox should be held liable for presenting unsupported conspiracy theories as news, but I think our legal system requires the jury to make that determination rather than the judge.

Whether or not the “neutral reportage” doctrine applies in this case should not have made a difference, really. Even without the privilege, a defendant shouldn’t be held liable for republication when it’s clear from the context and wording of the statement that the republisher is not vouching for the accuracy of the statement but merely conveying truthfully what others have said. The law doesn’t prohibit a person from sharing a rumor, for example, when done responsibly. And just look at what happened to former Lieutenant Governor Justin Fairfax when he tried suing New York Public Radio for allegedly republishing false accusations of sexual assault. Without even mentioning the neutral reportage privilege, the court dismissed the case and ordered Fairfax to pay NYPR’s attorneys’ fees, reasoning that the news organization could not be held liable when it was clear it was not adopting the allegedly false narrative as its own:

The show’s reference to his accusers’ claims does not discuss the details of those accusations or endorse the veracity of those claims and was followed immediately by clear statements that Fairfax categorically denied the allegations. In sum, the Broadcast conveyed only the undisputed fact that Tyson and Watson made sexual abuse allegations against Fairfax and that Fairfax had categorically denied the allegations, without any opinion or suggestion by Harris-Perry that the allegations were true.

The court paid little attention to the republication doctrine and focused instead on the other elements of defamation liability, ultimately concluding that “Fairfax’s action against NYPR was meritless, unreasonable, and without any substantial basis in law or fact.”

To be clear, actual malice is still an issue in the Dominion case. I just don’t expect it to be the enormous hurdle that many commentators expect it to be. All that “malice” means in this context is that Dominion will have to prove that Fox presented false statements to its audience with knowledge of the statements’ falsity, or with a high degree of awareness that the statements were probably false. Contrary to what I’ve heard on some legal podcasts, Dominion doesn’t have to prove that Fox acted with malicious or evil intent. On the issue of whether Fox entertained serious doubts about the accuracy of some of the accusations being made about Dominion on its programming, there appears to be plenty of evidence that it did.


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