When former president Trump and pals were spreading their lies about how the election was stolen, an important part of their story was lies about two companies that produce voting equipment: Smartmatic and Dominion. These companies responded separately by filing libel suits against Rudy Giuliani, Sidney Powell, Mike Lindell, and Fox News, including lots of Fox News personalities. There are also credible rumors that soon these companies will file libel lawsuits against Trump.
These cases are very important because the fight against disinformation is being played out in court. How these play out will have important consequences for the future of American democracy.
First some definitions. Defamation is when you hurt someone’s reputation. Slander is when you say something that hurts a person’s reputation. Libel is when you publish the defamatory statements.
If someone says something that damages your reputation—and it causes you actual damage—you can sue for defamation (either libel or slander) I’ve long believed that libel cases are a way to fight again disinformation, and in fact, this is what’s happening right now.
The idea that you can say anything you want under the First Amendment is as nonsensical as the idea that personal liberty means you can do anything you want. You can’t. You can’t hurt people. You have the freedom to swing your fist, but not it if hits my nose. If your actions cause damage, tort law says you pay. Basically, tort law is all about making people pay for the damages they cause. Libel is a tort.
Back when America was young, the law was simple: you were not allowed to say anything bad about someone if it hurt their reputation. If you said something that hurt someone’s reputation, that person could sue for damages, or you could sue to shut you up. Not surprisingly, this law was used to shut people up.
One of our first libel cases actually involves Thomas Jefferson and Alexander Hamilton. This story is so good you may think I’m making it up. The case arose when President Jefferson brought charges against a small newspaper in Hudson, New York. The newspaper was called the Wasp. Jefferson sued the editor for running an unflattering article about him.
This particular article claimed that Jefferson, among other things, rewarded people for calling George Washington a traitor. The Wasp was known to be deliberately provocative. In fact, its stated purpose to “lash the rascals of the world.”
Jefferson sued the Wasp’s editor, Croswell, for “wickedly and maliciously” damaging Jefferson’s reputation and undermining public confidence in the president of the United States. At the time, to win your case, all you had to do was show that you’d been damaged. Alexander Hamilton agreed to defend the newspaper against Jefferson. He worked without pay because Croswell, the editor, couldn’t afford to pay.
Hamilton argued that the truth should be a defense in accusations of libel; otherwise there would be nothing to stop tyrants. He based his arguments on the same ideals that motivated the Revolutionary War.
He argued that in a democracy—as opposed to a monarchy—the press had an obligation to report bad behavior of those in office so the public could make informed decisions.
Hamilton won his case. The case People v. Croswell stands as a landmark case for freedom of the press.
The next case I want to tell you about happened when the Civil Rights movement was in full swing. The year was 1960. A group of Civil Rights leaders ran an ad in The New York Times to raise funds to help MLK, Jr. and others. The ad described “terror” of police actions against peaceful demonstrators in Montgomery. The ad was mostly true, but contained some exaggerations, and one false statement. A guy named Sullivan was a police chief in Montgomery. He sued The New York Times for libel, claiming that the false statement damaged his reputation. (The ad didn’t mention his name.) Really, what Sullivan and his pals wanted to do was put The New York Times out of business because The New York Times was supporting civil rights for Blacks.
The Supreme Court (in a unanimous decision) said that to prove libel against a public official like Sullivan, it’s not just enough to show that the newspaper was negligent or lied or said something wrong, you have to show that the newspaper acted with “actual malice” or knowledge that what they printed was false. Notice the “or” in that sentence. You don’t have to prove they knew the lie was false. You just have to prove that the statement was published with a reckless disregard for the truth. Legal standards are often sort of vague like that. What does ‘reckless disregard’ mean?
There you go. Welcome to the world of lawyering.
The Court in the case called Sullivan v. New York Times also said there must be a heightened standard of proof. Most civil cases require that the plaintiff prove each element by a preponderance of the evidence (think 51% certain; more likely than not.) Criminal cases require a much higher standard because criminal defendants are being punished and stand to lose their freedom or even their life. Civil cases are just about who has to absorb the cost of damages. That’s why criminal cases require that the prosecutor prove each element beyond a reasonable doubt (the highest standard of proof.)
Libel cases against a public figure, according to the court, must be proven by “clear and convincing evidence,” a standard higher than a “preponderance of the evidence,” but lower than “beyond a reasonable doubt.” This gives protections to free speech and the free press — but not the freedom to do whatever you want and recklessly disregard the truth and tell lies that cause damage.
In other words, if a public figure can show by clear and convincing evidence that a publication “recklessly disregarded the truth” when publishing something false that caused the public figure actual damages, the plaintiff wins.
This brings us to Fox News and Dominion and Smartmatic.
It also brings us to a question: Is Dominion a public figure or not? We don’t really know how a court will rule on that. I think a good argument could be made that it isn’t, even though it provides an important service for elections, which means it provides a public service.
If I were arguing that Dominion is not a public figure, I’d say well, what about the company that produces the paper on which ballots are printed? Is that company a public official because it contributed to an election? I don’t think so. Dominion did quiet work in the background and didn’t engage with the public or present itself as an authority. But we don’t know how a court will rule on this, so it’s safer to assume Dominion is a public figure. Better to overshoot the necessary legal standard than fall short. In fact, in the complaints filed so far, these companies are assuming that they’re public figures and they’re presenting clear and convincing evidence that the lies were spread with actual malice and reckless disregarding the truth.
The complaint filed by Dominion is easy to read and filled with evidence of actual malice. I won’t list examples. I’m more interested here in presenting the legal issues, not the factual allegations.
Dominion, in its complaint, did, however, write: ”If this case does not rise to the level of defamation by a broadcaster, then nothing does.” They are also able to show actual damages: Employees were harassed and received death threats. They’re in danger of losing their customers. Their reputation was certainly damaged.
Fox, in a public statement, said that it “is proud of our 2020 election coverage, which stands in the highest tradition of American journalism.” What they said in their court filings was a bit different. In a court filing, Fox said that they were simply reporting on a “controversy” that was of public interest, and they can’t be sued for this reporting. They said, “When a sitting President and his surrogates claim an election was rigged, the public had a right to know what they are claiming.” They then go on to claim that if the president and his surrogates were lying, Smartmatic should sue them, not Fox.
Fox wants to be like a social media site where they don’t have to monitor content, instead of like a publisher, that does. Then they point the finger at Trump and pals. Sue them not us.
Well, you see why this is going to get interesting?
If Fox wins, it will give Fox and other of these right-wing outlets free rein to continue. If they win they’ll be able to announce that they operate in the highest tradition of American journalism, which will lend credibility to what we know are lies. On the other hand, if Fox has to admit that they recklessly disregarded the truth, it gets a little easier to fight disinformation from these broadcasters. If Fox has to pay big bucks they might even have to take more care in the future.
Fox has filed a Motion to Dismiss the Smartmatic case. If they win that, it’s all over. Fox wins. If not, the battle will continue. I suspect that it will continue, and that it will get even more interesting.
