By Dan Kennedy • The press, politics, technology, culture and other passions

About that libel suit against Fox

Dominion’s libel suit against Fox seems pretty solid given that it was the company’s own hosts, not just their guests, who were spreading false information. And if they actually believed what they were saying — the key to an “actual malice” defense — surely their bosses knew better.

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  1. What’s the standard for “true belief” here? What if the hosts and their bosses just believed it and refused to consider evidence to the contrary? Are they protected because of their dogged ignorance? Is there a “should have known better” clause?

  2. Dan Kennedy

    We’re in the weeds now! “Actual malice” is defined as “knowingly false” or “reckless disregard for the truth,” the latter generally being defined as strongly suspecting it was false. Refusing to consider evidence to the contrary would probably not get you off, since there’s a precedent regarding a newspaper that lost a suit because the editor ordered her reporters not to check with sources who could have knocked down their story. But “should have known better” doesn’t really enter into it.

    • Really glad to be in the weeds! I expect there will be a lot of weeds in the defense arguments. When you say “strongly suspecting it was false” – I could see a plausible argument that in this era of epistemic closure, they had no reason to suspect it was false. Even “reckless disregard” might fail – what is “reckless”? For Fox, risking losing their audience would be reckless, no? And what if disregard for the truth is your brand?

      We might *need* a lot of weed to stomach reading through the arguments in this case.

  3. Steve Ross

    When it reaches the Supreme Court, we’ll find out. But unfortunately we may already know how the court will vote.

    • Dan Kennedy

      @Steve Ross: I can’t see the Supreme Court taking the case. It raises no constitutional issues. Thomas is the only one who’s ever said he would do away with Times v. Sullivan.

      @Steve Stein: It may not even come to actual malice, which would require the judge to rule that Dominion is a “public figure.” That would require the judge to decide that Fox should benefit from its own false commentary, since Dominion was hardly known to the public before the election. And if Dominion is ruled to be a private figure, the company would only have to show that Fox acted negligently.

  4. Steve Ross

    The voting machine companies were very well known in the states where millions of people used them. And anyone who votes knows the safeguards built into them, including paper trails if needed.

    Still, we had the court rule in 2013 that key “pre authorization” provision of Voting Rights Act was no longer needed. Court also ruled states could gerrymander (overturning its own “compact and contiguous” test), and greatly narrowed restrictions on campaign contributions (some going back more than 100 years), cheered on by ACLU in three separate decisions.

    The Supremes have gone a long way to disenfranchise non-whites and non-rich on their way to helping destroy democracy.

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