The spread of disinformation related to the Big Lie conspiracy perpetuated by Trump, and his allies, including Right-wing media networks, helped spur the ‘Stop the Steal Movement’ and the rioters that led to the violent siege of the U.S. Capitol on Jan 6th. A growing body of libel lawsuits has emerged in response to this. The suits will test the First Amendment protections and the accountability mechanisms within our current legal systems against the purposeful spreading of lies. So the question is, are libel lawsuits an effective tool to combat the spread of disinformation? And If so, what are the limitations? I will explore these questions by analyzing a defamation lawsuit currently playing out in Delaware which the outcome of the case has profound implications related to democratic accountability.
In the wake of the 2020 election, disinformation hit a fever-pitch high with the Big Lie that a massive and coordinated electoral fraud campaign stole the election from Trump. Some of this disinformation came from Trump and his legal team but was amplified and spread by right-wing media channels, One America News Network (OAN) and Fox News. These nefarious actors viciously and repeatedly targeted Dominion Voting Systems Inc., a manufacturer of voting machines used in 28 states, to perpetuate their election fraud claims. In March 2021, Dominion filed a $1.6 billion defamation suit against Fox News, arguing that the media conglomerate, in efforts to boost ratings, falsely claimed the voting company rigged the 2020 elections. The case is set for a jury trial sometime in April 2023.
To capitalize on its target audience, Dominion Voting System alleges Fox News ran a full-fledge disinformation and defamation campaign with the catchy phrase ‘Dominion-izing the Vote,’ now synonymous with fraudulently flipping votes. Dominion argues that repeated malicious attacks have caused irreparable damage to the company. Fox News defends its reporting as “neutral coverage” and claims it is covered under the First Amendment freedom of the press and free speech protections.
The bar is exceptionally high for defamation litigation cases to be successful. In New York Times Co. v. Sullivan (1964), the U.S. Supreme Court ruling states to sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate. It is here that the ‘actual malice’ standard was set.
In libel law, “malice” is the knowledge or gross recklessness rather than intent since courts found it difficult to imagine that someone would knowingly disseminate false information without bad intent. The high standard set in Sullivan protects the freedom of the press and has bolstered democracy by allowing the free flow of political debate and critique of public officials.
Fox has repeatedly been unsuccessful in their attempts to have the case dismissed, primarily because of the findings during the discovery phase. The Dominion lawsuit has exposed Fox News Corporation, the CEO Rupert Murdoch, and many of their top talents to spreading provably false statements—Fox News’s “Brain Room” Fact-checks and researches information before going on air. After the 2020 election, they looked into the conspiracy theories that Dominion Voting Systems had rigged the presidential election against Donald Trump, concluding those claims were false.
Internal emails between the owner of Fox News Corp., Rupert Murdoch, and CEO Suzzane Scott show blatant disregard for the truth. In one exchange, Murdoch states, “Trump insisting on the election being stolen and convincing 25% of Americans it was a disservice to the country, and inevitably it blew up Jan 6th.”
And in Murdoch’s deposition testimony, Fox stars ‘endorsed’ lies about the 2020 election, and he chose not to stop them. And when pressed by Dominions lawyers as to why Fox continues to give a platform to election deniers like the “My Pillow” guy, Mike Lindell, Rupert Murdoch agreed, “It is not red or blue, it is green.” This acknowledgment by Murdoch tells us ratings and profits were the motivation for Fox News perpetuating false election fraud claims under the guise of the free press has landed us in this precarious information environment where there is no shared understanding of facts. If Dominion wins the $1.6 billion defamation case, it will hurt Fox News, which it cares most about, the wallet.
A non-profit group, Protect Democracy, is working to combat disinformation and argues that democratic decision-making requires a shared reality based on facts. Without shared facts, our trust in trust each other and our political leaders are diminished. And the ability to make informed voting decisions that hold our representatives accountable is significantly improved. Today in the U.S., the relentless spread of disinformation-false information deliberately spread by bad-faith actors causes citizens to be apathetic and even hostile towards democratic institutions and one another.
Defamation law is a powerful tool to help stop disinformation and those who intentionally spread it. Protect Democracy advocacy group offers three outcomes that litigation serves as an effective tool. It can effectively deter the individuals and corporations involved but also work as a warning to other media outlets using propaganda to boost ratings and profits. It can also help to neutralize biases in our information ecosystem that allows disinformation to spread more quickly than facts. Finally, it can disrupt the feedback loop that pushes elected officials toward disinformation-driven policy. The spread of disinformation distorts politics, sows confusion, and undermines trust in democratic institutions. Libel laws can be an effective tool within our legal system to combat the spread of disinformation; however, there are limitations beyond the difficulty of proving ‘actual malice.’ Regardless of the outcome of this particular case, it is improbable Fox News’ audience will be at all persuaded to reconsider the propaganda feedback loop as anything but a conspiracy.