"Dominion has a very strong case against Fox News" and other right wing media outlets: report

A legal scholar explains in the Guardian why the voting machine company's defamation lawsuits are going forward

Published July 5, 2022 5:00AM (EDT)

The Fox News Channel logo (Kevin Hagen/Getty Images)
The Fox News Channel logo (Kevin Hagen/Getty Images)

This article originally appeared on AlterNet.

Attorneys for Fox News have been hoping that a massive $1.6 billion defamation lawsuit from Dominion Voting Systems would be thrown out in court. But that lawsuit, along with separate lawsuits filed by Dominion against Fox News competitors Newsmax TV and One America News (OAN), continues. And Fox News is claiming that its right to free speech is being violated.

"In the months following the 2020 U.S. presidential election, right-wing TV news in America was a wild west — an apparently lawless free-for-all where conspiracy theories about voting machines, ballot-stuffed suitcases and dead Venezuelan leaders were repeated to viewers around the clock," journalist Adam Gabbatt reports in an article published by The Guardian on July 4. "There seemed to be little consequence for peddling the most outrageous ideas on primetime. But now, unfortunately for Fox News, One America News Network (OAN), and Newsmax, it turns out that this brave new world wasn't free from legal jurisdiction — with the three networks now facing billion-dollar lawsuits as a result of their baseless accusations."

After the 2020 presidential election, Sidney Powell and other far-right attorneys falsely claimed that that the election had been stolen from then-President Donald Trump with the help of Dominion — a false claim that Fox News, Newsmax and OAN were happy to promote. Fox News attorneys, however, have maintained that the right-wing cable news outlet was simply presenting a different point of view, and Dominion has countered that Fox News was reporting false information to drive ratings. Dominion has also filed lawsuits against Powell and attorney Rudy Giuliani, another promoter of the Big Lie.

Ciara Torres-Spelliscy, who teaches constitutional law at Stetson University, told the Guardian, "Dominion has a very strong case against Fox News — and against OAN for that matter. The reason Dominion is suing is because Fox and other right-wing news outlets repeated vicious lies that Dominion's voting machines stole the 2020 election from Trump for (Joe) Biden. But all of these conspiracy theories about Dominion's machines were just pure bunk, and Fox as a news organization should have known that and not given this aspect of the Big Lie a megaphone."

Torres-Spelliscy added, "What's particularly bad for Fox is (that) Dominion asked them to stop and correct the record in real time, and Fox persisted in spreading misrepresentations about the voting machine company."

When the U.S. Supreme Court, under Chief Justice Earl Warren, handed down its ruling in New York Times v. Sullivan back in 1964, it was clear about what does and doesn't constitute defamation. The High Court made it clear that an honest mistake is not "defamation" — there has to "actual malice."

Many years later, former Alaska Gov. Sarah Palin sued the Times for defamation. But she couldn't prove "actual malice" and lost the case. Now, far-right Justice Clarence Thomas, often slammed as an authoritarian by his critics, is calling for the High Court to revisit the "actual malice" standard and make defamation easier to prove, which is ironic in light of how quick right-wing media outlets are to push outlandish conspiracy theories; if Thomas had his way, there could be a lot more defamation lawsuits against Fox News and its competitors.

Torres-Spelliscy stressed that there are major differences between Palin's defamation lawsuit against the Times and Dominion's lawsuit against Fox News.

"In the Palin case, the New York Times quickly corrected the mistake about Palin that had been added while an article was edited," Torres-Spelliscy told the Guardian. "By contrast, Fox News kept up the bad behavior and repeatedly told myths about Dominion's voting machines. This is likely why judges in several of these Dominion defamation cases have not dismissed them."

Fox News issued a statement saying: "Limiting the ability of the press to report freely on the American election process stands in stark contrast to the liberties on which this nation was founded and we are confident we will prevail in this case as the First Amendment is the foundation of our democracy and freedom of the press must be protected."

By Alex Henderson

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