Page 9 - Delaware Lawyer - Fall 2023

machines could “flip votes” from Trump to Biden.1 None of these claims bore any resemblance to the truth and all were wholly unsupported by evidence. At least initially, Fox was reluctant to give air time or much credence to these absurdities.
Yet the center didn’t hold: After a concerning drop in ratings, the network assumed a more credulous posture to- wards the election-denial proponents. This wasn’t new territory for the net- work. As I wrote during the COVID pandemic, Fox amplified the voices of vaccine skeptics — even those who had relied on sketchy science and statistics.2 Yet perhaps because the network had suffered no consequences from that course of conduct, on-air personalities tried the same tactic once again with the 2020 election. Fox gave substan- tial airtime to claims about Dominion’s
voting systems they knew weren’t true. That’s what Delaware Superior Court Judge Eric Davis, who was set to pre- side over the trial, declared in a pre-trial ruling: “The evidence developed in this civil proceeding demonstrates that it is crystal clear that none of the statements relating to Dominion about the 2020 election are true.”
What, then, was left for trial? Only the resolution of the more difficult is- sue of whether responsible parties at Fox had acted with “actual malice” — which is the standard against which def- amation suits brought by public figures, including corporations like Dominion — are judged.
The Origin of a Defamation Standard
The actual malice rule originated in 1964, in New York Times v. Sullivan.3
In the 21st century, the actual malice standard has come in for criticism. 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.
Because of that case and several that fol- lowed, public officials and public figures now must prove by clear and convinc- ing evidence that the defendant knew their defamatory statements were false, or at least acted in “reckless disregard” as to their truth or falsity. By design, it’s a tough standard to meet, because of the breathing room required for critics of those in power to engage in full-throated and sometimes damaging reporting that is in the public’s interest.
The court feared that the lesser neg- ligence standard in place under state laws would “chill” the First Amend- ment’s promise of free and robust dis- course, by causing reporters and other media to censor themselves for fear of being found liable for simple errors that a jury might find to have been made negligently. The Supreme Court was responding to a tactic that some
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