On Tuesday begins one of the most closely watched trials about press freedom in decades. Dominion, maker of voting machines, is suing Fox News for defaming the company during its coverage of the 2020 election. Fox hosts and plenty of more or less deranged guests had suggested that the election was stolen, spreading increasingly absurd theories about how the machines could flip votes from Trump to Biden.
Quite a few observers, including liberals, are anxious that a victory for Dominion could backfire: if the case reaches the US supreme court, the latter’s radical right-wing majority, evidently willing to overturn precedents like Roe v Wade, could use the occasion to hollow out protections for news organizations (a category to which Fox evidently does not belong). Ron DeSantis is already busy tightening libel laws, explicitly targeting “legacy media.”. So, while Fox having to pay $1.6bn dollars to Dominion might be deeply satisfying for critics of a Republican party propaganda channel, democracy as a whole could turn out to be the loser. Yet this handwringing is misplaced.
Fox claims that “cherished First Amendment rights” are on the line. They refer to the Supreme Court’s 1964 decision in New York Times co v Sullivan. The Times had run an ad defending the civil rights movement; the ad contained several factual errors and led a commissioner of the Montgomery police, LB Sullivan – who wasn’t named in the ad at all – to sue for defamation. An Alabama judge, promising “white man’s justice,” found for Sullivan. The supreme court had other ideas. Its majority noted a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.”
Concretely, the Court established that plaintiffs had to prove “actual malice” – which, contrary to what one might think, is not a test for anything like ill will, but refers to knowingly publishing falsehoods (or at least exhibiting reckless disregard for the truth). The same defense still applied when Sarah Palin sued the Times over an editorial alleging a link between Palin’s political action committee and the shooting of representative Gaby Giffords in 2011 (both the judge and the jury rejected Palin’s libel suit).
Observers are right to see the “actual malice” approach as an important protection of the free press. They are also right to worry about Trump’s multiple threats to “open up” libel laws. Characteristically, Trump never followed through, but his star pupil-turned-rival DeSantis, a lawyer evidently skilled in the arts of “autocratic legalism,” is pushing a new defamation law in Florida.
Earlier this year, in what looked like a lavishly produced TV show, with DeSantis as anchor and “TRUTH” emblazoned behind his desk, the governor explored “the defamation practices of the legacy media” with “legal experts” and supposed “victims.” He can count on at least two allies on the supreme court: Clarence Thomas, when not busy jet-setting thanks to a wealthy admirer, has voiced an interest in overturning Sullivan, as has Neil Gorsuch who claims to be worried about declining standards in journalism.
Not least, observers are right to point to countries in which what technically is known as “strategic litigation against public participation” – or simply Slapp – has been effective in undermining news organizations: they are regularly slapped with costly and distracting lawsuits (while journalists are also individually intimidated by trolls, and whole news organizations are bought by oligarchs close to figures like Viktor Orbán in Hungary and Recep Tayyip Erdoğan in Turkey). Contrary to what DeSantis claims, strict libel laws hardly ever work for “the little guy,” but can easily be weaponized by the powerful.
Yet such worries should not make anyone wish for Fox to prevail. After all, there is plenty of evidence that decision-makers at the network – all the way to the top -- knew that they were airing falsehoods. Not accidentally, not because of sloppiness, not because of pressure to go on air before facts could be fully verified – but out of a concern with retaining market-share: the malice was the method.
And if Dominion wins, it does not follow that every newsroom will be subject to investigations by courts. As astute observers have recognized, hand-wringing about “setting precedents” overlooks that it will take future actors consciously to abuse precedents; the logic of “imagine what our enemies would do with such rules” ultimately suggests that no rules should be made at all, as long as there is the slightest chance of abuse (as there usually is).
Whatever the trial’s outcome and the state of jurisprudence, the likes of DeSantis will attempt to cow editors – in ways parallel to his book banning and classroom censorship; if these measures fail in courts, they can still do the trick of intimidating teachers and administrators. In the end, there’s just no reason for defenders of media freedom to make the mistake of rooting for Fox (even while holding their noses).
Jan-Werner Müller is a professor of politics at Princeton University. He is also a Guardian US columnist
