Landmark case? In fact, Dominion’s libel suit against Fox News is pretty simple

We’ve been told many times that the Dominion voting machine libel suit against Fox News could be a “landmark case.” I want to push back against that.

If Fox wins, then yes, it will be a landmark case, but that particular outcome seems unimaginable. That’s because we know from Fox’s own internal communications that top executives and hosts knew they were lying when they repeated the claims advanced by Donald Trump and his minions that Dominion’s machines stole votes from Trump and awarded them to Joe Biden.

In order to show libel, a plaintiff must prove that a media outlet published or broadcast false, defamatory statements about them. The Supreme Court’s 1964 Times v. Sullivan case added a third element for public officials who wish to win a libel suit: “actual malice,” which is defined as a knowing falsehood or reckless disregard for the truth. Several years later, the actual malice standard was extended to public figures, including a corporation such as Fox.

This really shouldn’t be difficult. In the unlikely event that Fox wins, it would mean that actual malice as a legal concept no longer exists. In reality, Dominion v. Fox is a pretty ordinary case in the sense that it presents no new issues at all. Fox defamed Dominion with false claims and, in private conversations, admitted that they were lying. The network’s defense will be that it was merely reporting newsworthy statements — but it didn’t just report them, it promoted them, and its hosts agreed with them on the air.

It is, in a way, the flip side of Sarah Palin’s 2022 libel case against The New York Times, when it was obvious to any observer that the Times had simply made a careless error in claiming that the man who shot then-congresswoman Gabby Giffords and several others had been incited by a map put together by Palin’s policial action committee showing gunsights over several congressional districts, including Giffords’. In fact, there was no evidence that the mentally ill shooter was even aware of such a map. There was no actual malice, and Palin lost.

It’s hard to imagine that any combination of money awarded to Dominion as well as punitive damages will add up to any more than a rounding error for Fox. What I’d really like to see is for the jury to require Fox to apologize in prime time, over and over, for lying to its viewers. How about nothing but apologies for a week? Now, that would be some must-see TV.

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