Page 11 - Delaware Lawyer - Fall 2023

show on Fox but was fired shortly after the case settled) that “Sidney Powell is a bit nuts.” Carlson hardly thought more of her, writing that she was making “everyone paranoid and crazy, includ- ing me.”5 To be fair, Carlson did end up challenging Powell on her claims on his show, but the negative social me- dia response to that broadcast was fol- lowed by Fox giving more airtime to these conspiracy theories. And Rupert Murdoch, then the Chairman of Fox Corporation, committed an own goal by admitting that the network’s cov- erage of the election was neither blue (Democratic) nor red (Republican), but “green” — as in the money the network feared losing.
Possible Future Effects of the Settlement
Given this damning background, the trial seemed likely to add a stag- gering public relations hit to whatever damage award Dominion might ulti- mately be able to win. (The complaint demanded some $1.2 billion.)
The promised spectacle of Fox news celebrities offering potentially damag- ing testimony against the company was a major reason for the media circus I referenced earlier. When I showed up on what was to have been the first day of the trial, the human and techno- logical swarm around the courthouse might have been enough, by itself, to drive Fox to settlement. Little of the expected publicity promised positive things for the network.
But what, if anything, does the set- tlement portend for the 2024 election? One can hope for more restraint, not only from news networks with a known audience to please but also from those on social media inclined to spread mis- information.
As a dramatic illustration of that possibility, consider that we continue to live with a reminder of the poten- tial consequences of spreading false
information. As this article is being written, Fox is still tied up in a lawsuit brought by Smartmatic,6 another elec- tronic voting systems company — and also in connection with alleged misin- formation the network spread about Smartmatic’s role in the 2020 election. The case has moved into the discovery phase, and (so far) Fox has shown no willingness to settle the case. In short, there’s a chance that what Fox feared from the Dominion suit will haunt the company as the 2024 election season bears down on us: a parade of Fox executives and personalities forced to defend themselves in a public trial over alleged defamation. That dreary spectacle, should it unfold, could cre- ate cold second thoughts among those tempted to make stuff up.
Conclusion
We’ve come a long way from the English common law, where defamation was primarily a tool for restoring indi- vidual reputations, and required only a showing that the defendant had made a false statement (even if without fault!) that damaged individual reputation, the “jewel of [our] souls.”7
Yet today, corporations (and their shareholders) are no less dependent on their good name than the men and women of Shakespeare’s time, and may be more able to prove economic loss than the individual subjects of baseless gossip. We’ve also had to deal with a flood of information unknown to the early common law, and our deep nation- al commitment to political and social debate — though messy and even pruri- ent at times — created a need for some constitutional protection for those who challenge accepted wisdom (including raising doubts about COVID vaccina- tions or election results). But there’s no warrant for false and misleading speech that compromises, rather than enhances, our national discourse.
At least two Supreme Court Justices
have called for a reconsideration of the actual malice rule. There’s something to that. In dissenting from the denial of certiorari in a recent case, Justice Neil Gorsuch noted the vast changes in the media landscape and the emergence of many “publishers” (in the broad legal sense of that term) who did virtually no fact-checking, but who were protected by the actual malice standard.8 As he noted in that dissent, the more liberal Justice Elena Kagan has also expressed reservations about the standard as it has come to be applied today. I don’t reach the same conclusion as they do, but if we are to maintain the proper balance between robust and courageous report- ing, on the one hand, and protecting the reputation of people and companies who are defamed, on the other, the ac- tual malice standard needs to be a stan- dard — and not a free pass.
NOTES
1. Ali Swenson, AP FACT CHECK:
Trump Legal Team’s Batch of False Vote Claims, Nov. 19, 2022, AP News at https:// apnews.com/article/fact-check-trump- legal-team-false-claims-5abd64917ef- 8be9e9e2078180973e8b3
2. John Culhane, Fox News Could be Sued if its Anti-Vax Statements Caused People
to Die, SLATE, July 23, 2021, at https:// slate.com/news-and-politics/2021/07/ fox-news-tucker-carlson-vaccine-lawsuit. html?pay=1700690592427&support_ journalism=please
3. 376 U.S. 254 (1964).
4. Jeannie Suk Gersen, The Dark Side
of Defamation Law, May 11, 2023, at
h t t p s : // w w w . n e w y o r k e r . c o m / m a g a - zine/2023/05/22/the-dark-side-of-defama- tion-law
5. Azmi Haroun & Kelsey Vlamis, Tucker Carlson told former Trump attorney Sidney Powell it was "cruel and reckless" for her to keep telling people Trump had won with-
out being able to prove it, Business Insider, March 7, 2023, at https://www.businessin- sider.com/tucker-carlson-told-sidney-powell- her-election-claims-cruel-reckless-2023-3
6. Alison Frankel, Fox claims Smartmatic used defamation suit to woo investors, points finger at Soros, Sept. 28, 2023, at https:// www.reuters.com/legal/government/col- umn-fox-claims-smartmatic-used-defamation- suit-woo-investors-points-finger-2023-09-28 7. William Shakespeare, OTHELLO, Act 3, scene 3.
8. Berisha v. Lawson, 141 S.Ct. 2424 (2021) (Gorsuch, J., dissenting from denial of cert.).
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