By Jeremy W. Peters
A judge in Delaware Superior Court is expected to swear in the jury this week in a defamation trial that has little precedent in American law. Fox News, one of the most powerful and profitable media companies, will defend itself against extensive evidence suggesting it told its audience a story of conspiracy and fraud in the 2020 election it knew wasn’t true.
The jury will be asked to weigh lofty questions about the limits of the First Amendment and to consider imposing a huge financial penalty against Fox. Some of the most influential names in conservative media — Rupert Murdoch, Sean Hannity, Tucker Carlson — are expected to be called to testify. But there is another fundamental question the case raises: Will there be a price to pay for profiting from the spread of misinformation?
Few people have been held legally accountable for their roles in trying to delegitimize President Joe Biden’s victory. Sidney Powell, a lawyer who was one of the biggest purveyors of conspiracy theories about Dominion Voting Systems, the company suing Fox for $1.6 billion, avoided disbarment in Texas after a judge dismissed a complaint against her in February.
Jenna Ellis, an attorney who worked with Powell and the Trump campaign, received a reprimand last month instead of losing her license with the Colorado bar. Donald Trump, whose false insistence that he was cheated of victory incited a violent mob on Jan. 6, 2021, is running for president a third time and remains the clear front-runner for the Republican nomination.
Judge Eric Davis, who is overseeing the case, said in a statement Sunday that the trial would be delayed by a day, until Tuesday. He did not cite a reason but said he would make an announcement at 9 a.m. Monday.
Political misinformation has become so pervasive in part because, there is little the government can do to stop it.
“Lying to American voters is not actually actionable,” said Andrew Weissmann, the former general counsel of the FBI who was a senior member of the special counsel team under Robert Mueller that looked into Trump’s 2016 campaign.
It’s a quirk of American law that most lies — even ones that destabilize the nation, told by people with enormous power and reach — can’t be prosecuted. Charges can be brought only in limited circumstances, such as if a business executive lies to shareholders or an individual lies to the FBI. Politicians can be charged if they lie about a campaign contribution, which is the essence of the criminal case against Trump by the Manhattan district attorney’s office.
In the Fox News case, the trial is going forward because the law allows companies like Dominion, and people, to seek damages if they can prove their reputations were harmed by lies.
The legal bar that a company like Dominion must meet to prove defamation is known as actual malice. And it is extremely difficult to prove because of the Supreme Court’s 1964 decision in New York Times Company v. Sullivan, which held that public officials can claim defamation only if they can prove that the defendants either knew that they were making a false statement or were reckless in deciding to publish the defamatory statement.
“There are all sorts of times you can lie with impunity, but here there’s an actual victim,” Weissmann added. “It’s only because of the serendipity that they actually attacked a company.”
This case has proved to be extraordinary on many levels, not only for its potential to deliver the kind of judgment that has so far eluded prosecutors like Weissmann, who have spent years pursuing Trump and his supporters who they believe bent the American democratic system to a breaking point.
“Even if this didn’t involve Donald Trump and Fox and the insurrection, this is a unique libel trial, full stop,” said David Logan, a professor of law at Roger Williams School of Law and an expert on defamation. “There’s never been one like this before.”
It is extremely rare for defamation cases to reach a jury. Logan said his research shows a steady decline over the years, with an average of 27 per year in the 1980s but only three in 2017.
Some experts like Logan believe the case’s significance could grow beyond its relevance to the current disinformation-plagued political climate. They see an opportunity for the Supreme Court to eventually take the case as a vehicle to revisit libel law and the “actual malice” standard. The justices have not done that since a 1989 case involving a losing candidate for municipal office in Ohio who successfully sued a newspaper after it published a false story about him a week before the election. The court said that a public figure cannot recover damages unless there was “clear and convincing proof” of actual malice.
The actual malice standard has been vital for individual journalists and media outlets who make mistakes — as long as they are honest mistakes. But some scholars like Logan — as well as two conservative Supreme Court justices, Neil Gorsuch and Clarence Thomas — have argued that “actual malice” should be reconsidered as too high a standard. Thomas specifically cited as a reason “the proliferation of falsehoods.”
“The nature of this privilege goes to the heart of our democracy, particularly in this case,” said Logan, whose paper arguing that the courts have made it too difficult for victims of libel to win relief was cited in a dissent by Gorsuch in 2021.
Fox lawyers are already preparing for an appeal — a sign they are under no illusion that beating Dominion’s case will be easy. At several recent hearings in front of Judge Eric M. Davis, Fox has been represented by Erin Murphy, an appellate lawyer with experience arguing cases before the Supreme Court.
The evidence against Fox includes copious amounts of text messages and emails showing that producers, hosts and executives belittled the claims being made on air of hacked voting machines and conspiracy, details that Dominion has said prove the network defamed it.
But Fox lawyers and its public relations department have been making the case that its broadcasts were protected under the First Amendment because they encompassed the kind of coverage and commentary that media outlets have a right to do on official events of intense public interest.
“A free-flowing, robust American discourse depends on First Amendment protections for the press’ news gathering and reporting,” a network spokesperson said in a written statement. The statement added that Fox viewers expected the kind of commentary that aired on the network after the election “just as they expect hyperbole, speculation and opinion from a newspaper’s op-ed section.”
Davis has expressed considerable skepticism toward Fox in the courtroom. He issued a sanction against Fox last week when Dominion disclosed that the company had not revealed details about Murdoch’s involvement in Fox News’ affairs, ruling that Dominion had a right to conduct further depositions at Fox’s expense. In a letter to the judge on Friday, Fox said, “We understand the court’s concerns, apologize, and are committed to clear and full communication with the court moving forward.”
But the judge does not have the final say. Twelve men and women from Delaware will ultimately decide the case. And defamation suits so rarely prevail, it’s also reasonable to consider the possibility that Fox does win — and what a 2024 election looks like with an emboldened pro-Trump media.