Why First Amendment Experts Think Fox News Will Settle Its Dominion Dispute

Ashley Cullins
·7 min read
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A courtroom showdown between Fox News and Dominion Voting Systems over the network’s coverage of the 2020 election is putting a spotlight on protections for journalists that typically insulate them against defamation claims, including the neutral report privilege and the actual malice standard. Both sides argue their loss would have a devastating impact. Fox News claims no outlet would be able to cover newsworthy allegations without fear of a lawsuit and Dominion says siding with the network would give broadcasters free rein to knowingly spread lies. Despite their apparent alarm, or maybe because of it, First Amendment experts expect that they’ll settle their fight — and soon.

The legal battle began in March 2021 when Dominion sued Fox News for $1.6 billion. The company claims the cable channel knowingly amplified “radioactive falsehoods” about election fraud made by Donald Trump and his supporters because it was worried about losing its audience to Newsmax and OAN.

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“Fox sold a false story of election fraud in order to serve its own commercial purposes, several injuring Dominion in the process,” states the complaint. “If this case does not rise to the level of defamation by a broadcaster, then nothing does.”

Dominion alleges that Fox experienced backlash for accurately reporting on the results of the election — including a Twitter tirade from Trump himself — and opted to knowingly disregard facts to try to win back viewers. The election technology supplier argues this damaged the company’s reputation, subjected its employees to harassment and death threats and undermined the credibility of U.S. elections.

In order to succeed on its defamation claim, Dominion would need to prove actual malice — meaning that Fox either knew the statements to be false or acted with reckless disregard for the truth. The standard was established in 1964 in The New York Times Co. v. Sullivan. Knight First Amendment Institute Senior Counsel Katie Fallow says the elevated requirement “ensures free speech and the ability of the media to report on public officials and figures without the fear of lawsuits based on a mere mistake.”

Generally, the standard makes it an uphill battle to successfully sue a media outlet for defamation. It’s become somewhat of a political football as critics — mostly politically conservative figures including U.S. Supreme Court justices Clarence Thomas and Neil Gorsuch and Florida Gov. Ron DeSantis — say Sullivan and the current landscape of U.S. libel law effectively let the media operate unchecked.

“Currently a lot of conservatives are arguing that the actual malice standard should be overturned based on this theory that the mainstream media has an agenda and is out to mislead and defame people who don’t share its agenda,” says Fallow, noting that Florida lawmakers have introduced bills that would considerably lower the bar. “I would think conservative commentators would be subject to more defamation lawsuits, and would lose more of them, if First Amendment protections were rolled back.”

In this case, it’s those very protections that Fox News is relying upon, under both Sullivan and New York’s anti-SLAPP law, as the company argues that Dominion can’t prove malice.

Argues Fox News in a reply brief, “When Dominion finally turns to the evidence of what the relevant hosts actually knew and believed at the time, instead of what Dominion thinks they should have known and believed, it identifies nothing that comes close to clear and convincing evidence rebutting their uniform testimony that they did not know whether the President’s claims were true or false.”

Court filings over the past few months have generated no shortage of headlines — especially after Dominion unleashed a trove of communications including private messages among Fox News talent and staff in support of its motion for summary judgment. The voting machine supplier argues that inside the network there was “widespread knowledge of the truth” and claims those messages prove that Tucker Carlson, Sean Hannity, Lou Dobbs and others knew there was no election fraud but felt it would be bad for business to shut down the claims. One message written by the network’s former managing editor noted, “It’s remarkable how weak ratings make good journalists do bad things.”

“This appears to be a relatively unusual case where Dominion has presented a remarkable array of statements by Fox’s own executives, on air hosts and producers showing that the knew the claims were false but they continued to air them because they knew they would lose their audience,” says Fallow.

Fox argues that the messages Dominion is sharing have been cherrypicked and insists that it did present both sides of the story. The network argues that Dominion “has not even identified any defamatory statement of fact — as opposed to newsworthy allegations or opinions — attributable to Fox News, let alone identified any such statement published with actual malice.”

And Fox says holding the network liable for repeating allegations made by the then sitting President of the United States would chill free speech.

“There is some merit to that in the abstract,” says Fallow. “It is newsworthy that they’re making these false claims, but there is a difference between reporting on that and essentially acting as a mouthpiece for the false statement.”

So, much of the debate centers on whether Fox News was merely reporting on newsworthy events or if it was endorsing lies about Dominion pushed by Rudy Giuliani and Sidney Powell by continuing to air them after becoming aware that they were false.

“The amount of facts that they have that show that Fox executives, producers and hosts all subjectively believed that these claims about Dominion and the election were false — using words like ‘nuts’ — that’s pretty unusual,” says Fallow. “If Fox were to be held liable based on this level of facts I don’t think it would create a bad precedent for other news organizations.”

Media law specialist Daniel Novack isn’t so sure. “As a media lawyer, I’m worried about the neutral report privilege getting stomped on,” he says, pointing to an adage that bad facts create bad law. “It’s extremely irritating to watch Fox cloak itself in neutral reportage and First Amendment protections when this has the potential to destroy those protections because the facts are so bad.”

Loyola Law School professor Aaron Caplan sees it a different way. “There are some cases that are important because they might change the law, and there are others that are important because of what happened,” he says. “I don’t think this Fox case is going to change the law any. What’s important about it is the underlying facts. Getting the truth about the election is tremendously important, getting the information about the machines our country uses for elections is important, whether one of our major news networks routinely lies is important. I think the facts of the case are important and that’s why there’s attention being paid to it.”

But, based on how disputes of this nature usually go, there’s a solid chance there won’t be a definitive finding either way.

“Most civil cases between two corporations end up settling before trial,” says Caplan. “Most corporations would rather know for sure it’s going to be X dollars than take the risk that it might be $1.6 billion. It’s a business judgment about how much risk they want to take and how much money they have on hand.”

So, why hasn’t this fight settled? Surmises Fallow, “I assume that it hasn’t settled yet because they’re waiting to see how the judge rules on the motion for summary judgment.”

The ruling could give one side or the other more leverage and affect how much money is on the table. Experts think it’s unlikely that either Fox News or Dominion will prevail on its motion for summary judgement, but are eager to see what judge Eric M. Davis says in a Tuesday hearing in Delaware Superior Court.

“I don’t think either side is going to win their motion,” says Novack. “I’m expecting this to go to trial if nobody blinks and settles.”

But, Novack thinks ultimately Fox will write a check to avoid a trial, which is currently set to begin April 17. “There is an obvious endgame here,” he says, “and is it to settle for a few hundred million dollars and walk away and never discuss it again.”

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