Several times a year, in my role as president of the Wisconsin Freedom of Information Council, I get to meet with small delegations of journalists from around the world brought in by the U.S. State Department’s guest visitor programs. Often joining me is Norman Stockwell, the publisher of The Progressive. We talk about government transparency (or the lack thereof) and the pressures and constraints faced by reporters and news outlets in our respective countries.
A recurring theme: The visitors, mostly from Asia, Latin America, and Europe, are often astonished by the extent to which the U.S. media and public are free to criticize people in power. Some countries tolerate satire; some don’t. “You cannot do that,” said a journalist from Central America at a recent session. “You cannot make fun of a politician.”
Back in colonial America, criticism of government officials was considered “seditious libel” under English common law, even if it was true. But in a 1735 libel case, New York publisher John Peter Zenger successfully argued that citizens have a “natural right” to make true statements about those in power. This principle was codified in laws across the land.
In a 1964 case known as New York Times Co. v. Sullivan, the U.S. Supreme Court dramatically expanded the protection afforded journalists and others in regard to comments about public officials. It established that plaintiffs in libel cases must prove not only that their critics got something important wrong but also that they either knew it was false or otherwise acted with “reckless disregard,” whether or not the claim was true. Subsequent court rulings extended this standard to include not just public officials but also public figures.
This high bar is a constant source of irritation to people in the public eye for whom lying comes as naturally as breathing. Former President and current presidential contender Donald Trump has long called for legislation or court action “to open up our libel laws so when they write purposely negative and horrible and false articles”—presumably as defined by Trump—“we can sue them and win lots of money.”
Now allies of Florida’s attention-craving GOP governor and presidential wannabe Ron DeSantis have introduced legislation to gut the protections afforded under Sullivan.
The proposed bill would establish a presumption that any “statement by an anonymous source” is false; eliminate the “actual malice” standard for public figures in certain situations; declare that accusing anyone of discriminating on the basis of race, sex, sexual orientation, or gender identity “constitutes defamation per se”; and require losers of defamation lawsuits under these outrageous new standards to pay the legal fees of the people who sue them. [Update: The Florida legislature did table the measure for the current session but its lead sponsor, Republican state Representative Alex Andrade, has promised to bring the bill back next year.]
DeSantis and his crew know these measures will face legal challenges. That’s the whole point. They want to give the U.S. Supreme Court’s activist conservative supermajority a chance to revisit Sullivan, toward which Justices Clarence Thomas and Neil Gorsuch have both expressed antipathy. “Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits,” Thomas once said, “we should give them only the protection the First Amendment requires.” And Gorsuch claimed the Sullivan ruling “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
While Republican politicians and court conservatives conspire to lower the bar for winning defamation suits, the high standard of “actual malice” was evidently met in the lawsuit filed by Dominion Voting Systems against the nation’s premier purveyor of rightwing pablum, Fox News. A settlement was reached in mid-April, on what was supposed to be the first day of a six-week trial. Fox agreed to pay Dominion $787.5 million, which is a lot of money.
Dominion had sued Fox, seeking $1.6 billion, for spreading false claims that its voting machines and software were used to switch votes from Donald Trump to Joe Biden in the 2020 presidential election. Internal communications obtained through discovery showed that the Fox News hosts and executives understood that the allegations they were spreading about the election and Dominion were false—or, as they expressed it, “ludicrous,” “dangerously insane,” “shockingly reckless,” “totally off the rails,” “complete bs,” and “MIND-BLOWINGLY NUTS.” Yet they continued to let guests and hosts defame Dominion and embrace Trump’s big lie that he had somehow won.
Not only did Fox News promote lies, it suppressed the truth. The network’s erstwhile star performer, Tucker Carlson, and fellow host Sean Hannity even called for the firing of a reporter who dared to fact-check a Trump tweet that mentioned Dominion. “It needs to stop immediately, like tonight,” Carlson wrote. “It’s measurably hurting the company. The stock price is down.”
The Fox News hosts and execs knew the allegations against Dominion were false and that the people making them were bonkers, but that didn’t matter.
Fox News Chief Executive Officer Suzanne Scott also dashed off an email in which she declared that on-air fact-checking that challenged these baseless claims “has to stop now.” She called efforts to tell the truth about the election “bad for business.” (A Fox spokesperson said Scott was referring to “one host calling out another.”)
Rupert Murdoch, the Fox network’s controlling owner, admitted under oath that some of Fox’s on-air personalities “endorsed” what he knew were lies about the election. He said he “could have” stopped them but didn’t. In a January 20, 2021, email to CEO Scott and his son and likely successor, Lachlan Murdoch, the elder Murdoch called Trump’s insistence that the election was stolen “a huge disservice to the country. Pretty much a crime.” He said it had led inevitably to the events of January 6. Yet the network kept promoting the delusion of Trump and his followers, for fear that its audience would switch to other outlets.
Carlson was unceremoniously fired by Fox a week after the settlement, over this and other embarrassments. Even Murdoch, somewhere in his lizard brain, understands that Carlson had hurt the network’s reputation, such as it is, by committing the cardinal sin of journalism: You can have opinions and express them, but you cannot make shit up. Journalists and commentators who do this are breaking the rules and crossing a line. Interestingly, it’s the exact same line drawn by New York Times Co. v. Sullivan.
The standard set by the Sullivan case is that the media and others must make good-faith efforts to tell the truth about public officials and figures, or else face consequences, like a defamation suit. Yes, it goes beyond the First Amendment, but it carves out an appropriate boundary.
No, you can’t sue the media for truthfully covering the credible claims that Anita Hill made regarding Clarence Thomas, no matter how much he doesn’t like them. But yes, a news organization that trashes the reputation of a business by spreading what it knows to be lies for the world’s oldest reason, to make money, can be held to account.
Throughout the Dominion case, Fox claimed the mantle of the First Amendment. Days before the settlement, a Fox spokesperson called the lawsuit “a political crusade in search of a financial windfall” and warned that “a verdict for Dominion and its private equity owners would have grave consequences for the entire journalism profession.” Fox News attorney Erin Murphy argued that alleging vote-rigging against Dominion “is not something that Fox News made up. This is something that was coming from the President and his legal team.”
But it was more than that. The Fox News hosts and execs knew the allegations against Dominion were false and that the people making them were bonkers, but that didn’t matter. “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,” Laurence Tribe, the famed Harvard Law School professor, told The Guardian. “Fox and its producers and performers were lying as part of their business model.”
Delaware Judge Eric Davis, the assigned trial judge, wrote in a pretrial ruling that the evidence was “CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true.” The only issue was whether the network acted with actual malice and reckless disregard for the truth. It did.
In settling the lawsuit, Fox did not issue any apologies or retractions. “We acknowledge the Court’s rulings finding certain claims about Dominion to be false,” Fox blithely noted in a statement. Dominion shot back: “The truth matters. Lies have consequences.” The company still has defamation lawsuits pending against Rudy Giuliani, Sidney Powell, and Mike Lindell, as well as the rightwing news networks Newsmax and OAN (One America News Network).
But let’s not forget that there are many situations in which even Fox News rightfully enjoys the protections afforded by the standard for defamation set by the Sullivan decision. No one would be more at risk than Fox if the standard for defamation of public figures were relaxed.
Mark my words: If a challenge to Florida’s new laws making it easier to sue for defamation ends up before the U.S. Supreme Court, Fox News will join with media outlets of all stripes in filing amicus briefs in defense of this six-decade-old precedent. That, ironically and fortuitously, may be the only thing that keeps the court’s conservatives from overturning it.
At the end of the day, we may have Fox News to thank for preserving our natural right to criticize people in power.