Not all lies are created equal. For example, there are so-called white lies (“You haven’t gained an ounce!” when someone clearly has). But the lies that Fox News, its hosts and its guests told about Dominion Voting Systems in the wake of the 2020 election are the type of humdingers that can undermine our entire system of government.
We should keep in mind that this case is about protecting our democracy, not, as Fox will argue, about subverting the freedom of the press.
As we wait for Dominion’s $1.6 billion defamation suit against Fox News and its parent company, Fox Corp., go to trial, we should keep in mind that this case is about protecting our democracy, not, as Fox will argue, about subverting the freedom of the press.
Dominion is suing Fox News for falsely stating that it tried to rig the presidential election for Joe Biden by stealing votes from Donald Trump. Specifically, Fox News hosts and guests claimed that Dominion bribed politicians, rigged its voting machines to flip votes from Trump to Biden and tied itself to Hugo Chávez, the late president of Venezuela. At the risk of stating the excruciatingly obvious, Dominion did none of these things. In fact, the judge has already ruled that Fox News hosts and guests lied. In fact, the judge explicitly stated that it was “crystal clear” that the statements at issue are false.
The Dominion v. Fox News defamation trial is expected to begin Tuesday. Follow our live blog for the latest updates and expert analysis at msnbc.com/dominiontrial.
Defamation law requires that the plaintiff (here Dominion) prove that the defendant (Fox News and Fox Corp.) published a false statement of fact about the plaintiff that caused the plaintiff harm and that the defendant did so with actual malice. The judge has already concluded that Dominion has proved much of its case and that Fox News cannot avail itself of the specific First Amendment defenses it sought to use as an excuse to escape liability for its torrent of lies.
Dominion has only one element of a defamation case left to prove at trial: that Fox News and its hosts and guests acted with actual malice. In plain English, this means Dominion must prove those making the false statements of fact knew they were false or recklessly disregarded the fact that they were false. This is a high bar, and it should be.
The actual malice requirement means we can punish people for their speech only if they knew they were spreading lies or had “serious doubts” about the truth of their statements. A speaker who is merely negligent and should have known better before spreading lies will not be punished for those lies in a case like this one. It would be too heavy an infringement on the freedom of speech.
Defamation law allows us to punish people for their speech, and that is appropriate, but only when a plaintiff can clear the difficult hurdles demanded of a defamation claim. The existence of defamation law is an acknowledgment that some speech is so vile and harmful that the First Amendment will allow us to punish the speaker. In fact, penalizing people for defamatory speech is actually a way of bolstering one of the main theories behind the First Amendment — the marketplace of ideas. The theory here is that if we allow ideas to compete in a free and fair marketplace, the truth will ultimately rise to the top. Arguably this works the best if the law allows us to discipline people for willfully spreading lies. The actual malice requirement means we can punish people for their speech only if they knew they were spreading lies or had “serious doubts” about the truth of their statements. Fox unsuccessfully tried to wrap itself in two specific First Amendment defenses, often used by members of the media to defend against defamation suits, and failed on both counts. First, the judge ruled that Fox could not rely on something called the “neutral reporting privilege.” This allows members of the media to escape liability for defamation claims when they were merely accurately reporting on allegations made by newsworthy people, or, put another way, newsworthy allegations. The judge ruled that the evidence did not support Fox’s claim that it “conducted good-faith, disinterested reporting.” Second, the judge ruled that Fox could not use a “fair report privilege.” This defense allows members of the media to avoid liability when they are fairly and truly reporting on statements made in official proceedings, like lawsuits. But as the judge concluded, “Most of the contested statements were made before any lawsuit had been filed in court.” Penalizing any speaker for speech is very serious. We should do it only in the rare circumstances in which our legal standards clearly show that the harm of allowing the speech is worse than the fact of punishing it. The case of Dominion v. Fox shows just one of those rare circumstances. This is a case about lies at the heart of our democracy, regarding free and fair elections. Dominion should win not only because a company was negatively affected by lies spread by Fox News, but also because our democracy depends on it.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
