The Fox-Dominion Settlement Isn’t a Good Argument for Cable News Speech Restrictions
April 19, 2023 | Tags: First Amendment, free speech, Politics, REASON
Fox News admitted to spreading false statements about Dominion Voting Systems as part of larger conspiracy claims involving the 2020 election. Dominion got an apology from Fox in the form of $787.5 million. And along the way, the suit pulled back the curtain on internal divisions among Fox News hosts and executives over election-fraud claims. I'd call Dominion's civil lawsuit against Fox a success.
Of course, a lot of folks on the left were anticipating that more juicy revelations would come to light during the trial. Hence, yesterday's news that Fox settled the Dominion suit just as a trial was about to start hasn't been greeted with universal enthusiasm from Fox News haters.
Some have also expressed disappointment that Fox News wasn't punished more for spreading misinformation, or somehow prevented from doing it again. But this was a civil suit, not a criminal case. Even if the trial played out and Fox lost, there was never a remedy available to guarantee that Fox hosts wouldn't play with fire like this again.
Besides, even if such a remedy existed—via criminal or civil law—it would almost certainly represent an unacceptable incursion on press freedom, no matter one's opinion of Fox News. Any sort of government prior restraint on what it airs would violate the First Amendment. And letting the government directly punish Fox News hosts for their statements—even if those statements end up being defamatory—would start us down way too slippery a slope. (Progressives who don't agree might just want to imagine a Trump administration with the power to arrest CNN and New York Times journalists they alleged to be spreading fake news.)
If defamation laws are to exist, we are far better off if defamation is a private action, brought in civil court, like we saw here.
Not only did Dominion get a nice payout, but pre-trial attention to the case and revelations in it helped counter reputational damage that might have been done to Dominion—all while sullying Fox's reputation, at least in the eyes of many beholders. This is the process playing out as it was designed.
"Money is accountability, and we got that today from Fox," Dominion lawyer Stephen Shackelford said at a courthouse press conference yesterday.
For its part, Fox acknowledged "the Court's rulings finding certain claims about Dominion to be false." It said the settlement "reflects FOX's continued commitment to the highest journalistic standards. We are hopeful that our decision to resolve this dispute with Dominion amicably, instead of the acrimony of a divisive trial, allows the country to move forward from these issues."
Reason's Jacob Sullum has written extensively about this case, if you're looking for some good backstory on the claims involved.
To me, one of the most interesting elements was the meta-story about defamation standards. Fox News argued that Dominion couldn't meet the "actual malice" test established in New York Times v. Sullivan. In that case, the Supreme Court held that for a statement about public officials to reach the level of actionable defamation, it must be made with "actual malice"—that is, "with knowledge that it was false or with reckless disregard of whether it was false or not." Later this standard was expanded to apply to any public figure.
In other recent defamation cases brought by former President Donald Trump, conservatives have advocated for weakening the defamation standard set in Sullivan. That is, they wanted to make it easier for a public figure alleging defamation to win—a situation that could seriously impede freedom of the press, including for Fox News.
In any event, neither Dominion's defamation battles nor the fight over election fraud claims is over yet. Fox still faces a major defamation lawsuit from the voting tech company Smartmatic. And defamation suits Dominion filed against Newsmax, OAN, Rudy Giuliani, Sidney Powell, and Mike Lindell are still ongoing.
Quite the tease from the Dominion team at the end of their presser: "We'll see you at the next one."
Likely a reference to other defamation lawsuits they are pursuing…
— Elizabeth Landers (@ElizLanders) April 18, 2023
Graphic novels are bearing the brunt of new library wars over access to books, reports Reason's Brian Doherty. "These library fights are tied up with revived anxieties about race relations, gender roles and expression, and a frequently performative desire to protect children from actual sexual abuse or alleged 'grooming,'" Doherty writes. And "lawmakers across the country have been taking the debate about books beyond librarians (who are, yes, also public officials using public funds) and putting their fingers on the scale with legal threats." For example, Missouri, which "last summer passed a law imposing criminal penalties on library officials who let students see books with 'explicit sexual material' which understandably led to hundreds of books being preemptively removed from libraries around the state."
The Comic Book Legal Defense Fund's Jordan Smith observed that "the visual nature of comics and graphic novels has forced them to bear the burden of this bill. The standard 'works of art' [as an exception] seems only to apply to fine art. Graphic novels require the same consideration as prose when determining if they are a work of art and in some cases don't seem to be receiving that."
Indeed, Smith points out that graphic novel versions of famous prose works have been removed in cases where their sources have not, including "The Handmaid's Tale, American Gods, Crime and Punishment, and 1984. Yes, that 1984! Also removed from the school libraries were autobiographical and biographical materials, including Gender Queer, Fun Home, Maus, and A Dangerous Women: Graphic Biography of Emma Goldman."
Reason Foundation policy analyst Max Gulker talks tech monopoly myths:
My talk with @VanceGinn about big tech, antitrust, and Lina Khan's rocky start as FTC chair.
Find my episode today and lots more great content from the Let People Prosper podcast on your app of choice--Vance does an awesome job!https://t.co/PFQJv2ef2s
— Max Gulker (@maxg_econ) April 18, 2023
The Supreme Court heard arguments yesterday in a religious freedom case involving a Christian postal worker who didn't want to work on Sundays. See yesterday's Roundup for more details about the case. NPR has an update on some of the justices' reactions during the arguments:
At Tuesday's argument, Justice Sonia Sotomayor noted that at Groff's small post office of three carriers, others had to pick up the burden when he could not work.
"He was required to work Saturday, Sundays and holidays, and now he doesn't want to work half the days he was hired to work," Sotomayor said.
Justice Brett Kavanaugh focused on the language in the court's 1977 decision that said an employer would suffer an undue hardship if a religious accommodation would impose substantial additional costs on the employer. That, he suggested, seems to be what happened in Groff's small postal office when he refused to work Sundays or religious holidays.
"You had one employee quit, one employee transfer and another employee file a grievance as a result of what Mr. Groff was receiving in terms of treatment," Kavanaugh said.
Justice Elena Kagan also stressed the significant burden on other workers when one is allowed to refuse work. And Kavanaugh noted that other workers may wish to attend religious services on Sundays, too, though their religions may not require that they don't work on Sunday.
Justice Samuel Alito suggested that it wouldn't cost the postal service that much money to pay an extra dollar an hour to hire someone else for those days. But Solicitor General Elizabeth Prelogar, representing the postal service, replied that under the union contract, premium wages are time-and-a-half.
• Today marks the 30th anniversary of the end of the Waco siege. A new book by historian Jeff Guinn explores its legacy; Baylor University professor Philip Jenkins reviews it for Reason here.
• "An internet that is safe for sex workers is an internet that is safer for everyone," argues sex worker, activist, and researcher Danielle Blunt on the Electronic Frontier Foundation podcast.
• "A tsunami of anti-trans bills … have been making their way through dozens of states [sic] legislatures since January," reports The Washington Post. "As of April 14, legislators have introduced more than 400 such bills, compared to about 156 last year, and more than were introduced over the previous four years combined," according to data compiled by the American Civil Liberties Union.
• "How Bud Light became a microcosm of America in 2023."
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