The $1.6 billion defamation lawsuit by Dominion Voting Systems against Fox News may be a step toward fulfilling conservatives’ dreams of overturning a nearly sixty-year-old legal precedent.
New York Times Company v. Sullivan, was a landmark U.S. Supreme Court decision concerning a full-page advertisement that supporters of Martin Luther King Jr. published in The New York Times. The advertisement was highly critical of the treatment of civil rights movement protesters by Montgomery, Alabama, police officers. Based on certain inaccuracies in the advertisement, the Montgomery police commissioner L. B. Sullivan sued the Times for defamation.
In 1964, the Supreme Court ruled in a 9-0 decision that in addition to proving the standard evidence of defamation—the publication of a false and defamatory statement—any public official or candidate for public office must also display actual malice. Proving actual malice, the court declared, required demonstrating that the defendant knowingly made a false statement or recklessly disregarded competing evidence.
The case set a very high standard to prove defamation, one that Dominion Voting Systems seems likely to meet in their lawsuit against Fox News. As The Daily Beast reported, “some legal experts have argued that this case (if decided against Fox News), could actually end up proving that the bar to prove defamation that was set by Sullivan isn’t an impossible one to meet. But surely, without Sullivan, Fox News would already be toast.”
“This is direct evidence of knowing falsity,” explained RonNell Andersen Jones, professor of law at the University of Utah, in a February 2023 interview with Jon Stewart. Andersen Jones noted that in most defamation cases “the likelihood that you will find evidence of them [news outlets] saying, ‘We know this is a lie and we would like to move forward with it anyway’ is deeply unlikely.” But in the case of Dominion Voting Systems v. Fox News, “the filing contains just this trove of evidence of emails and text messages and internal memos that are rare both as to the volume of the evidence and as to the directness of the evidence.”
This sentiment was echoed by Harvard law professor Laurence Tribe who told The Guardian, “I have never seen a defamation case with such overwhelming proof that the defendant admitted in writing that it was making up fake information in order to increase its viewership and its revenues.”
In the lawsuit, Dominion Voting Systems accuses Fox News Channel of falsely reporting that Dominion’s voting machines fraudulently delivered victory to Joe Biden in the 2020 U.S. presidential election. Court documents obtained by other media outlets reveal that hosts and other high-ranking Fox News Channel officials—including the Chairman and CEO of Fox’s parent company News Corporation, Rupert Murdoch—knew these reports were false, but aired them anyway because they were more concerned with confirming their audience’s belief that Donald Trump won the election.
When New York Times v. Sullivan was decided, the Supreme Court was one of the most liberal courts in U.S. history. The Court of today is strongly conservative and hell-bent on overturning many past cultural victories for the left, such as access to contraception and the right to same-sex marriage. This was made abundantly clear in 2022, when the Court overturned abortion rights in the Dobbs decision. Dominion Voting Systems v. Fox News could give the Supreme Court an opportunity to reform New York Times v. Sullivan to adhere to the conservative interpretation of press freedom.
Many contemporary conservatives’ aim to limit press freedoms. During Donald Trump’s presidency, his Attorney General, Jeff Sessions, threatened journalists reporting on government leaks by requesting that the Justice Department begin “reviewing policies affecting media subpoenas.” More recently, a 2023 Florida Bill by state Republicans seeks to force political bloggers to register with the state and disclose their funding or face fines.
Conservatives have long noted their desire to remove the protections in New York Times v. Sullivan. In 2007, the Supreme Court Justice Antonin Scalia told author Norman Pearlstine in an interview that he would overturn the case if given the opportunity to rule on it. While President, Trump repeatedly threatened to re-examine libel laws and to attempt to mitigate the protections of the press including New York Times v. Sullivan.
Florida Governor Ron DeSantis has argued that the landmark case simply empowers the media to “find a way to smear you.” Even more concerning is the fact that one sitting Supreme Court Justice, Clarence Thomas, echoed these sentiments in a concurring opinion on an unrelated case where he asked his fellow justices to revisit New York Times v. Sullivan. Thomas argued that “If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.”
One cannot help but note that the American system of checks and balances includes an opposition party and an actively engaged citizenry. If New York Times Company v. Sullivan is overturned, the opposition party, the Democratic Party, will have to contend with the way it essentially handed a victory to conservatives. Indeed, Democrats championed the undermining of the First Amendment with censorship by proxy practices with Big Tech and their support of the active prosecution of whistleblowers like Julian Assange of WikiLeaks.
During his presidency, Barack Obama launched a war on whistleblowers with little-to-no pushback from his party or from progressive activists. With Democrats showing little effort to protect existing rights, it is up to the people to agitate for the First Amendment—rather than simply aligning behind a particular party.