by Laurence H. Tribe, Joshua Stanton and E. Danya Perry
April 11, 2023
2020 presidential election, constitutional law, Defamation, Disinformation, Donald Trump, election, election interference, First Amendment, Fox News, Rudy Giuliani, SCOTUS
by Laurence H. Tribe, Joshua Stanton and E. Danya Perry
April 11, 2023
In recent weeks, the American public has been privy to the startling private communications of high-level executives and media personalities at Fox News. The revelation of those internal communications is due to the lawsuit Dominion Voting Systems brought against the media company that is now set to go to trial later this month. In addition to some of the headline-grabbing but legally irrelevant remarks – like Tucker Carlson’s admission that he hates Trump passionately – there have been some whose legal relevance is clear and indeed devastating in this hotly contested courtroom battle. Those remarks make it clear that Fox News knew that conspiracy theories about the 2020 election were flatly false, yet still engaged in months of broadcasting such falsehoods. One of the legally damning remarks even came from Fox News CEO Suzanne Scott: she sent an email to the network’s head of programming, demanding that fact-checking election-rigging claims “has to stop now.”
Now the Delaware state court has decisively ruled that the statements at issue in the case are false. Here’s what the judge wrote on the falsity question (in the only italicized and all-caps sentence in the entire 81-page opinion): “The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true.”
That ruling was part of an extraordinary order partially granting summary judgment in favor of Dominion, and completely denying the summary judgment motion brought by Fox News. Summary judgment is when a party argues that a trial is unnecessary because there are no factual disputes for the judge or a jury to decide and because the law can lead only to one outcome (a win for that party and a loss for the other side). In this case, both parties moved for summary judgment, and the judge mostly sided with Dominion and against Fox News.
This outcome is remarkable for those of us with experience litigating defamation cases. Given the high burden in these lawsuits on plaintiffs such as Dominion, judges are typically inclined either to rule for the defendant, or at least to send the case to the jury. It’s far rarer for a court to rule – even partially – for the plaintiff, as the judge did here for Dominion, especially on the central issue of demonstrable falsehood. At trial, that means the jury will not need to determine if the statements are false because the judge has already ruled as much. The jury need only decide whether Fox News spread the false claims about Dominion while knowing that they were untrue or being reckless as to their falsity, and to determine what, if any, damages Dominion should receive to compensate it for the harm from Fox News’ actions.
Despite the rarity of such a result, extraordinary facts can lead to extraordinary outcomes. Here, the extraordinary background included dozens of lawsuits failing to establish any evidence whatsoever of irregularities in the 2020 presidential election. That track record would have made it difficult for any court to find any question of fact regarding the falsity of statements accusing Dominion of having faked the election’s results.
Nor should anyone have been surprised by some of Dominion’s other victories on lesser issues. As part of the ruling, Dominion won the right to prevent Fox News from raising defenses that it was just voicing opinions for which it couldn’t be held liable, or just fairly reporting the news. Dominion also won its argument that it does not need to prove that what Fox News broadcasted about it was harmful. Given the facts and the applicable law, the court’s decision was entirely reasonable.
Fox News further argued in its court filings that its broadcasts were constitutionally protected under the First Amendment. We strongly disagree, as did the judge in this case. There is little doubt that Dominion’s suit for damages met and indeed exceeded the standard the Supreme Court established in 1964 in New York Times Co. v. Sullivan for deciding when the First Amendment shields whoever disseminates material damaging to the reputation of a public official or public figure from liability. The standard set by that case and respected thousands of times since has been that the publisher of such material can be found liable if it knew the statement was false or acted with reckless disregardfor its truth or falsity. The law is clear that reckless disregard – that is, indifference to truth – is enough to establish liability for resulting reputational harm. In Dominion’s case, there appears to be overwhelming evidence that Fox News, its producers, and its hosts were more than just reckless. Dominion’s pinpointing of actual quotations from those individuals, including Fox News owner Rupert Murdoch, is breathtaking.
Although former Attorney General William Barr has argued that applying this longstanding rule in the Fox News lawsuit would deal a “major blow to media freedoms generally,” nothing could be further from the truth. Applying Sullivan to this case would curtail no freedom – beyond the spurious “freedom” to broadcast knowing falsehoods that damage the reputations of those they defame without having to be held accountable. Far from “paring back” the First Amendment’s protections, Dominion went the extra mile of conceding the applicability of the Sullivan standard even though the Supreme Court has not yet held that corporations like Dominion must show anything beyond negligent falsehood to prevail when suing for defamatory material dealing with matters of public concern.
Nor is Barr correct when he argues that the First Amendment has previously shielded media outlets from liability based on damaging falsehoods that originate from third parties and that defendants then air on their platforms, at least if the platforms do not expressly endorse those falsehoods. On the contrary, if that had been the rule, then the Supreme Court would have had no need to create the high standard it announced over half a century ago in Sullivan. The allegedly defamatory material in that case took the form of false statements about Sherriff Sullivan which appeared in a fundraising ad in the paper placed by civil rights organizations and was not “endorsed” by the publisher. Rather than holding The Times immunized from liability by the fact that the falsehood was attributable to a third party and not endorsed by the paper, the Supreme Court left no doubt that The Times could have been held liable if it ran the ad knowing it contained false statements of fact or with reckless disregard of that falsity.
Indeed, the recent debates over repealing or modifying Section 230 of the Telecom Act of 1996 would be incomprehensible if Barr’s position correctly stated First Amendment law. That statute provides immunity for online media platforms hosting third party content. No lawmakers, lawyers, or academics of whom we are aware have seriously argued that the First Amendment itself provides that immunity, which would of course make Section 230 altogether redundant and the heated debate over that statute pointless.
In any event, even if it were the case that a media outlet cannot be held liable for third-party material that it disseminates unless it endorses that material – which it emphatically is not – the recently unredacted evidenceDominion plans to introduce easily meets that requirement: its expected proof at trial shows a high likelihood that Fox News hosts did much more than neutrally report the “Big Lie” that the 2020 election had been stolen from then-president Trump by a conspiracy of which Dominion was a part; instead, they deliberately created the strong impression that they believed that lie themselves while saying offscreen that they did not. (Consider just one text chain between Tucker Carlson and one of his staffers. The staffer texted him, “Have you seen last night’s numbers?” and, “It’s a stupid story but this is all the viewers are into right now.” Carlson responded, “I noticed.”)
Nor is it the case, as Barr argues, that media outlets would be prevented from ever broadcasting interviews with blatant liars like Rudy Giuliani or Sidney Powell if Dominion were to prevail at trial. Applying Sullivan in this context simply asks whether the media company published the lies those guests spread with knowledge or reckless disregard of their falsity and deliberately refrained from fact-checking and correcting them.
Barr also suggests that many if not all the statements at issue in Dominion’s case are non-actionable statements of opinion. That would perhaps be a fitting consequence of the “post-truth” era ushered in by Trump, but some of the statements Fox News and Barr brush off as mere expressions of opinion are in fact capable of being proven true or false. The relevant statements in this case fall roughly into four silos: that Dominion rigged the election; that its software and algorithms manipulated vote counts; that the company is owned by a Venezuelan enterprise founded to rig elections for Hugo Chavez; and that Dominion paid kickbacks to government officials. Nothing in the case law supports treating those flagrant misstatements as mere matters of opinion: their factual falsity is demonstrable in all but the “alternative facts” universe that Fox News appears to have promoted.
For the press to function – and to serve its absolutely crucial role of reinforcing democracy by nurturing an educated public and helping the nation’s citizens make informed decisions when they vote or make their views known to those serving in government positions – it cannot be hamstrung by the fear of a lawsuit any time good-faith reporting turns out to have been inaccurate. Nor can the relaxed standard of mere negligence suffice to encourage the robust reporting and wide-open public debate democracy demands when the targets of critique are public figures like the sheriff in Sullivan or even public companies like Dominion.
But that does not mean the media must be given free rein to spew whatever falsehoods those who profit from it believe will drive up their numbers. Such falsehoods do as much to discredit the media and undercut its vital democratic function as would too relaxed a standard of liability. Sullivan’s standard – requiring proof of deliberate or reckless factual falsehood – achieves those goals admirably: good-faith reporters are protected, while those who knowingly air baseless and dangerous conspiracy theories are liable when those lies cause real-world harm. And where that harm is substantial, it is only reasonable that monetary damages must be paid to compensate for the resulting injury. In this case, those damages are potentially astronomical, perhaps starting at Dominion’s claimed $1.6 billion in compensatory damages, which can be multiplied several times over in punitive damages.
A jury will now have to decide these issues – whether Fox News acted with the requisite knowledge of falsity or disregard for truth and how much harm it potentially inflicted. A jury finding that Fox News is on the hook for 10-figure sum in this case would be both a fair outcome and a victory for democracy – and for the continued vitality of the appropriately balanced approach to the First Amendment set forth in Sullivan.
2020 presidential election, constitutional law, Defamation, Disinformation, Donald Trump, election, election interference, First Amendment, Fox News, Rudy Giuliani, SCOTUS
All-source, public repository of congressional hearing transcripts, government agency documents, digital forensics, social media analysis, public opinion surveys, empirical research, more.
by Andrew Weissmann, Ryan Goodman, Joyce Vance, Norman L. Eisen, Fred Wertheimer, Siven Watt, E. Danya Perry, Joshua Stanton and Joshua Kolb
Jun 2nd, 2023
by Dr. Gabija Grigaitė-Daugirdė
Jun 1st, 2023
by Scott Paul
May 25th, 2023
by Asha Rangappa
May 25th, 2023
by Ryan Goodman
May 22nd, 2023
by Ikechukwu Uzoma and Mooya Nyaundi
May 18th, 2023
by Patrick Quirk and Santiago Stocker
May 17th, 2023
by Tom Joscelyn, Norman L. Eisen and Fred Wertheimer
May 12th, 2023
by Spencer Reynolds
May 10th, 2023
by Ryan Goodman and Norman L. Eisen
May 9th, 2023
by Clara Apt
May 8th, 2023
by Faiza Patel and Charles Kurzman
May 8th, 2023
by Paras Shah
May 4th, 2023
by Menachem Z. Rosensaft
May 4th, 2023
by Lord David Neuberger, Can Yeginsu, Catherine Amirfar and Baroness Helena Kennedy
May 3rd, 2023
by James Bruce
May 3rd, 2023
by Suliman Baldo
May 2nd, 2023
by Jacob Glick
May 1st, 2023
by Ryan Goodman, Justin Hendrix and Norman L. Eisen
May 1st, 2023
by Adam Keith
Apr 28th, 2023
by Yumna Rizvi
Apr 25th, 2023
by Matthew Teasdale
Apr 25th, 2023
by Jessica Wolfendale
Apr 24th, 2023
by William Maley, Farkhondeh Akbari and Niamatullah Ibrahimi
Apr 21st, 2023
by Jelena Pejic
Apr 20th, 2023
by Elizabeth Goitein
Apr 18th, 2023
by Just Security
Apr 17th, 2023
by Brianna Rosen
Apr 14th, 2023
by Aryeh Neier
Apr 14th, 2023
by Ambassador James F. Jeffrey
Apr 13th, 2023
by Denis Bećirović
Apr 13th, 2023
by Erik Dahl
Apr 12th, 2023
by Paige Collings and Adam Schwartz
Apr 10th, 2023
by Pablo Arrocha Olabuenaga
Apr 10th, 2023
by Jelena Pejic
Apr 7th, 2023
by Ambassador Daniel Fried
Apr 7th, 2023
by Jenny Maddocks
Apr 5th, 2023
by Chimène Keitner
Apr 3rd, 2023
by Chimène Keitner
Apr 3rd, 2023
by Ryan Goodman, Norman L. Eisen, Siven Watt, Joshua Kolb and Joshua Stanton
Apr 3rd, 2023
by Siven Watt and Norman L. Eisen
Mar 30th, 2023
by Katherine Yon Ebright
Mar 30th, 2023
by Maksym Dvorovyi, Antonina Cherevko and Nick Benequista
Mar 30th, 2023
by Rebecca Hamilton
Mar 29th, 2023
by Sirikan Charoensiri
Mar 28th, 2023
by David Kretzmer and Limor Yehuda
Mar 27th, 2023
by Brianna Rosen
Mar 24th, 2023
by Justin Hendrix
Mar 23rd, 2023
by Clara Apt and Katherine Fang
Mar 22nd, 2023
by Siven Watt, Norman L. Eisen and Ryan Goodman
Mar 21st, 2023
by Stephen Pomper
Mar 20th, 2023
by Crispin Smith and Michael Knights
Mar 20th, 2023
by Tom Joscelyn, Norman L. Eisen and Fred Wertheimer
Mar 20th, 2023
by Stephen Pomper
Mar 20th, 2023
by Christopher S. Chivvis
Mar 20th, 2023
by Rebecca Hamilton
Mar 17th, 2023
by Ismet Fatih Čančar
Mar 17th, 2023
by Rebecca Hamilton
Mar 17th, 2023
by Erlingur Erlingsson and Fridrik Jonsson
Mar 15th, 2023
by Michael Schmitt
Mar 15th, 2023
by Erlingur Erlingsson and Fridrik Jonsson
Mar 15th, 2023
by Ambassador Daniel Fried
Mar 13th, 2023
by W. Casey Biggerstaff
Mar 10th, 2023
by Kelsey Davenport
Mar 10th, 2023
by Todd Buchwald
Mar 9th, 2023
by Chris Purdy
Mar 8th, 2023
by Adam Keith
Mar 4th, 2023
by Oleksandra Matviichuk, Natalia Arno and Jasmine D. Cameron
Mar 3rd, 2023
by Oleksandra Matviichuk, Natalia Arno and Jasmine D. Cameron
Mar 3rd, 2023
by W. Casey Biggerstaff
Mar 2nd, 2023
by John Erath
Mar 1st, 2023
by Inga Imanbay
Feb 28th, 2023
by Mary B. McCord and Jacob Glick
Feb 27th, 2023
by Mark Malloch-Brown
Feb 24th, 2023
by Mark Malloch-Brown
Feb 24th, 2023
by Darryl Robinson
Feb 23rd, 2023
by Luis Moreno Ocampo
Feb 23rd, 2023
by Ukrainian MP Kira Rudik
Feb 22nd, 2023
by Ukrainian MP Oleksiy Goncharenko
Feb 22nd, 2023
by Andy Wright and Ryan Goodman
Feb 21st, 2023
by Mark Nevitt
Feb 21st, 2023
by Ambassador David Scheffer and Kristin Smith
Feb 17th, 2023
by Sophia Yan
Feb 15th, 2023
by Elizabeth Goitein
Feb 13th, 2023
by Chile Eboe-Osuji
Feb 10th, 2023
by Linda Bishai and Laura R. Cleary
Feb 9th, 2023
by Scott Roehm
Feb 8th, 2023
by Norman L. Eisen, E. Danya Perry and Fred Wertheimer
Feb 7th, 2023
by Ryan Goodman
Feb 7th, 2023
by Rebecca Hamilton and Rosa Curling
Feb 6th, 2023
by Luis Moreno Ocampo
Jan 31st, 2023
by Brian Finucane and Luke Hartig
Jan 30th, 2023
by Douglas London
Jan 27th, 2023
by Eileen B. Hershenov and Ryan B. Greer
Jan 26th, 2023
by Menachem Z. Rosensaft
Jan 25th, 2023
by Jasmine D. Cameron
Jan 24th, 2023
by Ryan Goodman and Clara Apt
Jan 19th, 2023
by Kate Donald and Anne-Marea Griffin
Jan 19th, 2023
by Marieke de Hoon
Jan 13th, 2023
by Andy Wright
Jan 12th, 2023
by Karl Mihm, Jacob Apkon and Sruthi Venkatachalam
Jan 30th, 2023
by Clara Apt and Katherine Fang
Nov 18th, 2022
by Clara Apt
May 8th, 2023
by Noah Bookbinder, Norman L. Eisen, Debra Perlin, E. Danya Perry, Jason Powell, Donald Simon, Joshua Stanton and Fred Wertheimer
Oct 27th, 2022
by Just Security
May 9th, 2023
by Paul R. Williams, Milena Sterio, Yvonne Dutton, Alexandra Koch, Lilian Waldock, Floriane Lavaud, Ashika Singh and Isabelle Glimcher
Feb 13th, 2023
by Eileen B. Hershenov and Ryan B. Greer
Jan 26th, 2023
by Ambassador Peter Mulrean (ret.) and William J. Hawk
Jan 4th, 2023
by Clara Apt and Katherine Fang
Nov 18th, 2022
by Amanda L. White Eagle
Oct 10th, 2022
by Brianna Rosen
Oct 25th, 2022
by Oona A. Hathaway
Sep 20th, 2022
by Tess Bridgeman and Brianna Rosen
Mar 24th, 2022
by Nasir A. Andisha and Marzia Marastoni
Aug 15th, 2022
by Megan Corrarino
Feb 18th, 2022
by Mary B. McCord
Jan 24th, 2022
by Emily Berman, Tess Bridgeman, Megan Corrarino, Ryan Goodman and Dakota S. Rudesill
Jan 20th, 2022
by Laura Brawley, Antara Joardar and Madhu Narasimhan
Oct 29th, 2021
by Leila Nadya Sadat
Sep 13th, 2021
by Tess Bridgeman, Rachel Goldbrenner and Ryan Goodman
Sep 7th, 2021
by Just Security
Jul 19th, 2021
by Kate Brannen
Jun 30th, 2021
by Fionnuala Ní Aoláin and Kate Brannen
Jun 14th, 2021
by Steven J. Barela and Mark Fallon
Jun 1st, 2021
by Christine Berger
May 29th, 2021
by Beth Van Schaack
Feb 1st, 2021
by Beth Van Schaack and Chris Moxley
Nov 16th, 2020
by Oona A. Hathaway, Preston Lim, Mark Stevens and Alasdair Phillips-Robins
Nov 10th, 2020
by Erik Dahl
Jun 7th, 2022
by Justin Hendrix, Nicholas Tonckens and Sruthi Venkatachalam
Aug 29th, 2021
by Ryan Goodman and Juilee Shivalkar
Aug 8th, 2021
by Kate Brannen and Ryan Goodman
May 11th, 2021
by Atlantic Council's DFRLab
Feb 10th, 2021
by Ryan Goodman, Mari Dugas and Nicholas Tonckens
Jan 11th, 2021
by Ryan Goodman and Danielle Schulkin
Nov 3rd, 2020
by Chris Shenton
Aug 24th, 2020
by Ryan Goodman and Danielle Schulkin
Jul 27th, 2020
by Ryan Goodman and Julia Brooks
Mar 11th, 2020
Laurence H. Tribe (@tribelaw) is Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard University. He is the author of more than 115 books and articles, including his treatise, American Constitutional Law, the most frequently cited book on U.S. constitutional law since 1950. He was appointed by President Barack Obama to serve as the first Senior Counselor for Access to Justice at the Justice Department.
Joshua Stanton (@StantonLaw) is Counsel at Perry Law. He previously served as co-director of the Criminal Practice Clinic at Vanderbilt Law and as a public defender in Memphis, Tennessee.
Danya Perry (@Edanyaperry) is Founding Partner at Perry Law. She is former Deputy Chief of the Criminal Division for the Southern District of New York, and former Deputy Attorney General for the State of New York and Chief of Investigations for the Moreland Commission to Investigate Public Corruption.
Send A Letter To The Editor
by Brian Greer and Wendy Leben
Jun 2nd, 2023
by Paras Shah
Jun 2nd, 2023
by Asha Rangappa
May 25th, 2023
by Gretchen Knaut, Norman L. Eisen, McKenzie Carrier, Vicka Heidt, Greg Phea and Madison Gee
May 24th, 2023
by Kemal Kirişci and Berk Esen
May 22nd, 2023
by Tom Joscelyn, Norman L. Eisen and Fred Wertheimer
May 12th, 2023
by Joshua Rudolph and Nathan Kohlenberg
May 11th, 2023
by Spencer Reynolds
May 10th, 2023
by Paras Shah
May 4th, 2023
by Deborah Pearlstein and John Dellamore
May 4th, 2023
by Lord David Neuberger, Can Yeginsu, Catherine Amirfar and Baroness Helena Kennedy
May 3rd, 2023
by Asha Rangappa
May 3rd, 2023
Just Security is based at the Reiss Center on Law and Security at New York University School of Law.