Dominion v. Fox News: A Referendum on the Future of Journalism

Hate it or love it, everyone seems to have an opinion about Fox News. And as the libel lawsuit brought against it by Dominion Voting Systems teeters on the edge of settlement on the eve of going to trial in Delaware, it’s hard to avoid a chorus of voices who would love to see Fox subjected to public scrutiny and censure for allegedly peddling false information about Dominion’s role in the 2020 election and the integrity of the election itself.


I get it; I really do.  I hold no brief for Fox or its editorial standards, especially now that we’ve become privy to the extensive pre-trial discovery that strongly suggests that Fox management and talent knew that the conspiracy theories they were espousing were false. Telling lies, or allowing guests to come on your shows to tell lies, at least once you know or have reason to know they aren’t true, fits the classic New York Times v. Sullivan definition of “actual malice,” which is the legal standard public figures like Dominion must meet to prevail in a libel action.


But I’m one of the few media lawyers who believe that a loss for Fox could significantly impact the “mainstream” or conventional media. I’ve been struck by how many journalists and media lawyers have said that Fox’s conduct (as indicated in the pretrial discovery) is so egregious that no responsible news organization could ever be that bad (CBS News, Society of Professional Journalists (SPJ), CNN, Poynter).


But I fear that’s whistling past the graveyard for several reasons.


First, if this case goes to trial and eventually allows the Supreme Court of the United States to reexamine, truncate, or even eliminate the Sullivan actual malice standard, that is bad news for any news organization.  Several justices are itching to do just that.


Their position puzzles me because “actual malice” was intended to discourage or at least drastically limit frivolous lawsuits brought by powerful individuals against any news organization of whatever political stripe.  It doesn’t just favor the “liberal media.” Defending against these lawsuits costs media organizations time and resources, even if they eventually win. The risk of those expenses, coupled with possible big-money judgments, can deter investigative journalism.  Unfortunately, I’d predict if Fox loses, we’ll see a significant uptick in libel cases against all types of news organizations.


Second, I think the news organizations seeking to distance themselves from Fox are kidding themselves if they think they’d be immune from money judgments based on their current newsgathering and editorial choices.  In this country, most libel suits are jury trials.  In my experience, many juries use a particular case to express their disappointment and outrage against media organizations, not just the one in the dock at the time.


Many large damage awards are overturned on appeal, in time, but not without considerable expenditure of resources by the defending news organization — most of which can ill afford this in these straitened times.


And bear in mind that most news organizations will have a digital paper trail leading to any story. Though perhaps not as damning as Fox’s, they could be interpreted to indicate bias, irreverence, carelessness, and many other journalistic “sins” so that the jury could easily vote for liability, even against news organizations working in good faith.  We don’t have an enforceable code of journalism ethics in this country (unlike lawyers and doctors, for example), but a victory for Dominion could allow the courts to create a de facto set of standards for the news media.  I’m all in favor of journalism ethics, but I want those standards to be created by journalists themselves, not by an instrumentality of government.  As then-Chief Justice Warren Burger wrote ten years after the Sullivan ruling in Miami Herald Publishing Co. v. Tornillo, “A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution, and like many other virtues, it cannot be legislated.”


Finally, I don’t understand what short memories many journalists, and even media lawyers, seem to have.  It wasn’t long ago that former President Trump called the New York Times, Washington Post, CNN, and many other mainstream news organizations “fake news.”  He wanted to “open up the libel” laws to make it easier to sue the outlets he disagreed with.


Why would any journalist or media lawyer want to grant that wish?


For that matter, why would anyone want a governmental entity — perhaps one with which they strongly disagree — to be the arbiter of what is true or false?  That smacks of systems in other countries, where courts or presidents can decide what is true or false.


That seems un-American to me.  Give me the marketplace of ideas, and let the public decide for themselves.


The Dominion libel suit has become a referendum, not only on Fox News, but on the integrity of the 2020 election and on disinformation itself.   These are important issues, and it is an important debate to have.  But I think a libel suit is a terrible way to try to settle the debate.


Jane E. Kirtley

Jane E. Kirtley is the Silha Professor of Media Ethics and Law and director of the Silha Center for the Study of Media Ethics and Law at the Hubbard School of Journalism and Mass Communication at the University of Minnesota. She is also an affiliated faculty member at the University of Minnesota Law School.

She was a Fulbright Scholar teaching U.S. media law and ethics at the University of Latvia in Riga in 2016, and was Executive Director of The Reporters Committee for Freedom of the Press in Washington, DC for 14 years. Before that, she was an associate at the law firm Nixon, Hargrave, Devans and Doyle in New York and Washington, D.C., and a newspaper reporter in Indiana and Tennessee.

A member of the New York, District of Columbia, and Virginia bars, her J.D. is from Vanderbilt University Law School, where she was an editor of the Journal of Transnational Law. Her M.S.J. and B.S.J. degrees are from Northwestern University’s Medill School of Journalism. She is the author of two books and numerous articles on media law and ethics.

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