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Fox News Is on Trial, and So Are Falsehoods About 2020

WILMINGTON, Delaware — A Delaware Superior Court judge is expected to take oaths to a jury on Monday in a libel trial that has little precedent in American law. Fox News, one of his most powerful and profitable media companies, has made extensive headlines in the 2020 election, suggesting it told audiences stories of conspiracy and fraud that it knew weren’t true. Defend yourself with evidence.

The jury will be asked to consider lofty questions about First Amendment restrictions and to consider imposing huge fines on Fox. The most influential figures in conservative media, including Rupert Murdoch, Sean Hannity and Tucker Carlson, are expected to be called to testify. But there is another fundamental question raised by this case. Is there a price to pay for profiting from the spread of misinformation?

Few people have been legally held accountable for trying to outlaw a Biden presidential victory. Attorney Sydney Powell, one of the biggest purveyors of conspiracy theories about Dominion Voting Systems, the company that sued Fox for her $1.6 billion, said a judge dismissed the case against her in February. After that, she avoided her disqualification in Texas.

Jenna Ellis, an attorney who worked for Mr. Powell and the Trump campaign, was disciplined last month in exchange for losing his law license in Colorado. Donald J. Trump, whose false claims that he was tricked into winning on January 6, 2021 incited a violent mob, is running for president for the third time and remains the frontrunner for the Republican nomination. increase.

One of the reasons why political misinformation is so prevalent is that governments can do little to stop it.

“Lying to American voters can’t really translate into action,” said Robert S. Mueller, who was a senior member of the special counsel team that investigated Trump’s 2016 campaign. Former FBI General Counsel Andrew Weisman said.

It is a quirk of American law that most lies, even those destabilizing the nation told by people of great power and influence, cannot be prosecuted. Prosecutions can only be made in limited circumstances, such as when an individual has lied to the FBI. Manhattan District Attorney’s Office.

In the Fox News case, the lawsuit allows companies and people like Dominion to seek damages if they can prove their reputations have been damaged by lying.

The legal standard that companies like Dominion must meet to prove defamation is known as actual bad faith. And because of a 1964 Supreme Court ruling, it is very difficult to prove. The New York Times v. Sullivanthat a public official can claim defamation only if he can prove that the defendant knew he was making a false statement or was reckless in deciding to publish the defamation statement. judged.

Weisman added, “There are many cases where lying goes unpunished, but here are real victims.” “It just so happened that they actually attacked the company.”

Defendants in defamation cases are usually held in high esteem by media attorneys and First Amendment scholars. They argue that the law should give leeway for the media to make mistakes, even if they are serious, unless they are unintentional.

However, many legal scholars believe there is sufficient evidence to support Dominion’s lawsuit, claiming it was deliberately tarnished by lies broadcast by Fox, and would be surprised if a jury didn’t find out. Fox is liable for defamation.

John Culhane, a law professor at Widener University Delaware School of Law, said, “If this case goes wrong, it’s about as strong as the case you’re doing, so from my point of view, It’s clearly going to be a gross mistake. It’s defamatory.” Culhane added that Fox’s win would only make it harder to curb the kinds of misinformation that are rampant in the pro-Trump media.

“I think it encourages them even more,” he said.

This incident proved to be anomalous on many levels. It’s not just that prosecutors like Weisman could deliver the kind of sentences that have so far missed. He believes he has bent Americans.The democratic system has reached its breaking point.

David Logan, a law professor and defamation expert at the Roger Williams School of Law, said, “Even if this had nothing to do with Donald Trump and Fox and the riots, this is a unique honor. It’s a defamation lawsuit and it’s completely stopped.”There’s never been anything like this before.”

It is extremely rare for a defamation case to go to a jury. Logan says his research shows a steady decline over the years, averaging 27 cases a year in the 1980s, but in 2017 he had just three.

Some experts, like Logan, believe the case’s significance could grow beyond its relevance to the current disinformation-plagued political climate. They see it as an opportunity for the Supreme Court to finally take up the case as a means to reconsider defamation law and the standard of “actual bad faith.” Judge he hasn’t done it since 1989. case It concerns an unsuccessful Ohio City Hall candidate successfully suing a newspaper after it published a false story about him a week before the election. The court said public figures cannot claim damages unless there is “clear and convincing evidence” of actual malice.

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The standard of actual malice is very important to individual journalists and news organizations who make mistakes – so long as it’s an honest mistake. Two conservative Supreme Court justices, Clarence Thomas, argue that “actual malice” should be reconsidered as too high a bar. Justice Thomas specifically cited the “prevalence of falsehoods” as the reason.

“The nature of this privilege, especially in this case, goes to the heart of our democracy,” Logan said. Gorsuch, 2021.

Fox’s attorneys are already preparing an appeal. This shows that he has no illusions that winning the Dominion case will be easy.In several recent hearings before Judge Eric M. Davis, Fox , was represented by Erin Murphy, an appeals attorney with experience in discussing cases before the Supreme Court.

Dominion also seems to be very realistic about the possibility of an appeal. When the issue of Fox’s First Amendment defense was raised last month, independent appeals attorney Rodney A. Smora presented the case.

The idea that the Fox-Dominion case may ultimately be heard by the Supreme Court is shared by Viet Dinh, General Counsel of Fox Corporation. Ding, who is likely to be called as a witness by the Dominion during the trial, told his colleagues privately that he believes Fox’s chances in the Supreme Court are high. who knows what he thinks.

Evidence against Fox included dozens of text messages and emails showing that producers, hosts and executives downplayed broadcast allegations of hacked voting machines and conspiracies. increase.

But Fox’s attorneys and its public relations department have argued that the broadcast is protected under the First Amendment. This is because it contains the kind of coverage and commentary that the press has the right to make about official events of public interest.

“The free-flowing, robust American discourse depends on First Amendment protections for media news gathering and reporting,” a network spokesperson said in a written statement. The statement added that Fox viewers expected comments like those aired on the network after the election “just as they expect exaggeration, speculation and opinion from the op-ed section of a newspaper.”

Judge Davis dismissed Fox on some of the First Amendment arguments, a statement that limited his ability to argue certain points at trial.

A Dominion spokesperson said confidently: I look forward to the trial. ”

Inside Fox, from its Los Angeles headquarters to the news channel’s Manhattan headquarters, there’s little optimism on the subject. Several current and former employees have said privately that few would be surprised to see a jury rule against Fox.

Judge Davis expressed considerable skepticism against Fox in court. , determined that the Dominion was entitled to further depositions at Fox’s expense.

But he doesn’t have the final say. His 12 men and women in Delaware finally make the verdict. Defamation lawsuits rarely win, so it’s also reasonable to consider Fox’s chances of winning, and what if the 2024 election emboldens the pro-Trump media.

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