Page 10 - Delaware Lawyer - Fall 2023

FEATURE | WHAT DOMINION V. FOX TEACHES
southern states had begun to adopt during the Civil Rights era: They would find some inaccuracy in a story detailing the violence against protesters, and then sue the publisher for defamation. The justices didn’t have to imagine what might happen to newsgathering and reporting if something wasn’t done to free news media up to publish stories, often on tight deadlines, that might contain inadvertent (and often relatively insignificant) errors: it was already hap- pening, and had driven even the vener- able New York Times out of Alabama4 for several years leading up to the New York Times v. Sullivan case. The cases were often brought before all-white ju- ries, which increased the financial risk to news outlets from northern states.
The Problem of Deliberately False Reporting
But in the 21st century, the actual malice standard has come in for criti- cism. In our viral, all-news-all-the-time world, there’s ever-greater incentive to act recklessly, or worse, in order to get views to a thirsty public quickly. The troubling product of this trend could be seen in the lead-up to the Dominion
trial. Fox had in essence been arguing that their statements about the com- pany were not defamatory, because they reported on events that were “news- worthy.” But the interest in and need to cover an important story isn’t a license to spew known falsehoods, nor to give uncritical airtime to those who do. It’s one thing to air varying perspectives on a contentious subject; but it’s quite an- other to purposely or recklessly make outright misstatements. That’s not re- porting on a newsworthy subject; that’s bad behavior.
No one would argue (I hope) that a newscaster could invent and then relate a story that a terrorist attack was about to occur in Times Square. They’d be li- able for any harm that might result from the ensuing panic. Similarly, if Fox on- air personnel lied with impunity about Dominion machines, the result should be no different: compensation to the company (Dominion) harmed by those lies. The First Amendment protects nei- ther incitement to violence nor fraud. New York Times v. Sullivan stands for no such proposition.
Fox also argued that the network should be absolved of liability because
some of their news shows provided more accurate information that tended to give lie to the claim that the elec- tion had been stolen. But that’s not a winning position to take in a defama- tion case, because stating falsehoods is not cured when the defendant says other, even contradictory, things on the same subject that are true. This makes sense: Some viewers would surely have watched only the broadcasts that spread the false information, and in any case a defamatory statement can’t be called back. Once a defamatory statement has been made, even a full retraction and apology isn’t enough to defeat a lawsuit — although it might reduce the dam- age award if the retraction restores the plaintiff’s reputation and diminishes the effect of the original statement.
Perhaps even more damaging to Fox if the case had gone to trial, discovery turned up numerous communications and what amounted to admissions by Fox that the network knew some of the people they were giving airtime to were not reliable. For example, Laura In- graham, the conservative host of “The Ingraham Angle,” wrote to Tucker Carlson (who had his own highly rated
8 DELAWARE LAWYER FALL 2023