We begin today with Clare Malone of The New Yorker outlining what Dominion Voting Systems must prove in order to win their defamation suit against Fox News.
Actual malice is the legal standard for defamation that was outlined in the landmark Supreme Court decision New York Times Co. v. Sullivan. In this case, Dominion must prove that Fox aired untruths “with reckless disregard”—which can be established if Dominion proves that Fox News “entertained serious doubts as to the truth of [the] publication” or if they had a “high degree of awareness of [its] probable falsity.” That’s a notoriously difficult standard to prove, since it requires some insight into the mind-set of the people or organization that put out defamatory information. And news outlets devote a great deal of time and resources to protect themselves from defamation suits.
Fox News certainly had the infrastructure in place to, theoretically, prevent outright lies from making it to air. The network has a fact-checking-and-research department, known as the Brain Room, and its prominent hosts are supported by teams of producers and editors. Its executives are looped into conversations about coverage. But, in the weeks leading up to the trial, a deluge of texts and e-mails from Fox executives, hosts, and show staff members, which was made public in discovery, revealed a corporate culture that seemed to prioritize appealing to an increasingly hard-right segment of its audience over the actual practice of journalism. “Getting creamed by CNN!” Rupert Murdoch wrote to Fox News’ C.E.O., Suzanne Scott, in the days after the network called the election for Joe Biden. “Guess our viewers don’t want to watch it.” The Fox star Tucker Carlson wrote to a producer that the network was “playing with fire” and risked losing the trust of its viewers. “With Trump behind it,” he wrote, “an alternative like newsmax could be devastating to us.” Such revelations led to a gleeful frenzy of coverage about the network, but now, in Wilmington, specific facts must be proven.
The actual-malice section of the Dominion brief gives a good idea of how the company’s courtroom strategy will play out. Dominion lists twenty instances of alleged defamation, which the lawyers say occurred across Fox’s Web site, social media, and six of its shows—“Lou Dobbs Tonight,” “Sunday Morning Futures with Maria Bartiromo,” “Justice With Judge Jeanine,” “Fox & Friends,” “Hannity,” and “Tucker Carlson Tonight”—and at the direction of people at Fox News who Dominion says knew that the statements were false and let them air anyway. Those people include not just well-known hosts but their producers, network executives, and the very top brass: Rupert and Lachlan Murdoch, the father-and-son duo that controls Fox News and its parent company, Fox Corp.