UPDATE (Aug. 31, 2022, 4:50 p.m. ET) This column has been updated to include a statement from Fox News Media.
Dominion Voting Systems has sued Fox News and its parent company, Fox Corp., for $1.6 billion. That might seem like an exorbitant amount of money. But consider the craziness of the claims Fox News employees made on the air about the 2020 presidential election’s being stolen.
That might seem like an exorbitant amount of money. But consider the craziness of the claims Fox News employees made on the air.
Dominion sells both voting machines and software. Fox News is a media corporation whose hosts or guests, according to Dominion, spread lies — many lies — about the 2020 election’s being stolen. As it turns out, that election, which Joe Biden won by 7 million votes, was not stolen. Fox News denies any wrongdoing, and it has previously slammed the lawsuit as “baseless.” But what is clear is that rampant voter fraud is a myth.
One of the lies Dominion accuses Fox of spreading centered on the idea that Dominion rigged the election for Biden. Another involves the claim that Dominion is owned by a company founded in Venezuela to rig elections for Hugo Chávez (who has been dead for almost a decade).
Dominion has asserted that these statements ruined its reputation and caused significant financial losses. Thus its lawsuit against Fox News for defamation and its demand for over a billion dollars. Defamation law requires that the defendant (in this case, Fox News) made a false statement of fact about the plaintiff (that is, Dominion), which caused the defendant harm and was made with the requisite intent. In this case, the requisite level of intent is actual malice, which means that the defendant knew or recklessly disregarded the fact that its statements were not true.
To make their case that the company was defamed, attorneys working for Dominion deposed Fox News hosts Tucker Carlson and Jeanine Pirro last week. This week, those lawyers expect to have host Sean Hannity and former host Lou Dobbs testify under oath in depositions. Dominion will likely try to get them to admit that they knew what they were saying was false. They are also likely to try to compare what they said privately with what they said on the air to show that they must have at least recklessly disregarded the falsity of their statements.
In a Wednesday statement, Fox News Media said, “We are confident we will prevail as freedom of the press is foundational to our democracy and must be protected, in addition to the damages claims being outrageous, unsupported and not rooted in sound financial analysis, serving as nothing more than a flagrant attempt to deter our journalists from doing their jobs.”
Actual malice is a high and difficult standard to satisfy — as it should be. The law should err on the side of protecting speech, even if it is speech that the collective public generally reviles. But if a news network spreads lies about a company’s rigging an election, then we should also be able to punish that behavior. The harm of allowing the false speech to be uttered without consequence is greater than the harm of punishing that speech. The First Amendment prizes a marketplace of ideas, and essentially every marketplace in the world faces some limitations to allow it to function. Defamation law is one such regulation. In this case, proving Fox News had actual malice depends on showing that its executives or hosts had actual malice. Part of the way to do that is to depose some of the people who allegedly spread the lies at the heart of the case and those who refused to do so. In addition to its strategy of having the above-named Fox hosts give depositions, it appears Dominion’s strategy also includes interviews with past and former employees of Fox who questioned the story that Dominion rigged the election for Biden. Fox’s defense, meanwhile, seems to be that its on-air personalities were merely reporting an important story: former President Donald Trump’s false claims that the election was stolen. Defamation is a legal remedy that must be used judiciously. But when circumstances call for it, it is a vitally important tool. In this case it could be used to help hold election conspiracy theorists accountable and to prevent future false claims of election fraud. The First Amendment never has been and never will be absolute. The way to protect the American public, and indeed democracy, is to have the means to punish speech that qualifies as defamation. Dominion has a strong case against Fox News. That is good news for voters and bad news for (alleged) liars.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
