When Fox News decided to embrace the 45th President’s false election fraud claims, they took a huge risk. Fox consciously or unthinkingly ignored the risk of potentially catastrophic defamation lawsuits from the two voting systems companies (Dominion Voting Systems and Smartmatic) that its hosts and guests routinely disparaged in the weeks following the 2020 election.
Lou Dobbs, Rudy Giuliani, Sidney Powell, and others who promoted the Big Lie boldly defamed Dominion, Smartmatic, and various state election officials and workers as if they were immune from civil lawsuits. They acted as if they had never heard of defamation. Or perhaps they simply did not care about the harm they were inflicting on the reputation of those they implicated in their fanciful tales of disinformation. Maybe they believed that their power and their proximity to the President would deter the otherwise inevitable lawsuits for defamation.
They were mistaken. Dominion and Smartmatic took the lead and others followed.
As to Dominion and Smartmatic rigging the election, the MAGA spokespersons provided false innuendo such as Dominion’s alleged ties to Venezuela, the counting of votes overseas, and software that magically changed votes to get Joe Biden elected. Proof was promised but not produced; Fox continually broadcast and published lies that shattered the lives of reputable businesses and individuals.
The chickens came home to roost when discovery in the Dominion case revealed that Fox hosts and producers did not subscribe to the Big Lie but continued to promote it for the sake of ratings. That’s like a bar deliberately serving intoxicated patrons knowing that some of them will be driving.
The evidence from Fox’s internal emails and other communications, as well as the unprecedented $787 million settlement, destroyed any pretense that Fox practices journalism. It also highlighted the use of defamation claims as a sword against those who have callously disrupted lives through lies.
Dominion, Smartmatic, and several individuals still have active defamation cases against individuals and entities that endorsed the Big Lie. Both the media and individual defendants will likely pay a hefty price for publicly suggesting that the plaintiffs engaged in criminal behavior. The first case to go to trial resulted in a huge verdict against Giuliani that sent him fleeing to bankruptcy court for protection.
The purpose of defamation is to compensate those whose reputations are wrongly destroyed through the spreading of disparaging, inaccurate statements. But these lawsuits may serve a broader purpose: to deter the media from disseminating disinformation that pollutes the political discourse and expands the dangerous chasm between the left and the right.
As a lawyer and adjunct professor who has taught Business Law and related courses at three universities, I find this trend both fascinating and promising. It is a rare moment in which a small group of civil tort cases could have a profound impact on the future of news reporting. Some of my future blogs will cover these cases as they proceed towards trial or settlement.