The legal standard at the heart of Dominion’s defamation suit against Fox News is the “actual malice” test from a landmark Supreme Court case, New York Times Company v. Sullivan. Ironically, Justice Clarence Thomas, whose views seemingly align with Fox News, has spoken out against the 1964 precedent that currently makes it harder for plaintiffs like Dominion to sue.
As I’ve noted on the blog, the actual malice standard requires public figures alleging defamation to show that defendants knew or recklessly disregarded the truth. It’s a tough test to meet, and what makes Dominion’s case unusual is the extent of evidence it claims can help it meet that tough standard.
Thomas, meanwhile, has called on his colleagues to revisit the precedent (sound familiar?). In June, he lamented in dissent that the Times v. Sullivan decision has “allowed media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’” Thomas’ dissent was prompted by the court declining to hear a case that seemingly aligned with his ideological sympathies, brought by a Christian nonprofit organization that was deemed an anti-LGBT hate group by the Southern Poverty Law Center. Thomas complained that the plaintiff was “unable to satisfy the ‘almost impossible’ actual-malice standard this Court has imposed.”
“Public figure or private, lies impose real harm,” Thomas wrote in dissent of the court’s refusal to hear another case in 2021. Justice Neil Gorsuch wrote his own dissent in that same case, also raising the prospect of revisiting the defamation precedent. Of course, Thomas wasn’t talking about Fox News and 2020 election lies when he wrote about lies imposing real harm, but the notion applies just as well to the allegations in Dominion’s suit. Yet, if Thomas’ view were to become law, whatever harm or benefit that would bring, in a case like Dominion’s, it could put Fox News in even greater danger of defamation liability than it already is.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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