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Just as the 2024 election contest gets underway, Fox News and election software company U.S. Dominion are heading to a jury in April over Dominion’s claims that Fox defamed it by endorsing election fraud accusations against the company on its talk shows.
On March 31, Fox News was denied summary judgment in the suit, with the court rejecting Fox’s arguments that its programming was privileged under New York defamation law. If the action doesn’t settle, Dominion will have to convince a jury that Fox aired false and defamatory statements with actual malice—meaning knowledge of or reckless disregard as to their falsity.
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The trove of internal communications already produced by Fox in the lawsuit includes eye-popping admissions by Sean Hannity that he “never believed [that the election was stolen] for a second,” and by Tucker Carlson that his election-denying talk show guests were “crazy.”
Many pundits are already calling the trial for Dominion, and but in fact this is a case in which—regardless of what happens—nobody truly wins, particularly the press and society at large.
Why? Because defamation law is and should be concerned with the protection of individual reputation, but plaintiffs in recent cases have started to frame their claims as weapons to fight democracy-distorting disinformation. Dominion is a case in point: the company has cast itself as an intrepid combatant against electoral disinformation that has been weaponized by the conservative press for partisan political reasons.
But despite the surface appeal of this new way to fight viral falsity, the new anti-disinformation frame brings with it serious democratic costs without clear corresponding benefits. It also distracts from real issues about press rights under law.
To be sure, disinformation is a critical social problem that exacerbates partisan divisions and erodes democracy. But defamation lawsuits cannot credibly stem the systemic tide of disinformation. They cannot authoritatively establish any broad truths in contested political terrain. What they can do is threaten powerful chilling effects for the press and possible reduction in legal protections under the First Amendment. The game is not worth the candle.
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Dominion v. Fox News itself demonstrates this. If Dominion wins, the only “truth” that will have been established at trial is that a jury will have found Fox News to have acted with actual malice in airing the particular false statements at issue in Dominion’s complaint. This case cannot provide an authoritative truth about the overall “big lie” regarding the 2020 election.
Certainly Donald Trump will not admit during his 2024 campaign that a win by Dominion establishes the falsity of his election fraud claims. It is not clear that Fox News’s business model, in which its talk show pundits stoke its audience’s political outrage, would fundamentally change as a result of a Dominion win at trial.
Even if Dominion wins, its extravagant damage claims ($1.6 billion) could be reduced to a figure that can be absorbed by Fox without existential effect. In any event, if Dominion wins, Fox News will surely appeal, years will pass, and the many people who still believe that the 2020 presidential election was “stolen” will not be convinced otherwise. Whatever the short-term outcome, people who have relied on Dominion’s claims to fight disinformation will inevitably feel dissatisfied.
On the other hand, if Fox wins, the case’s anti-disinformation frame will backfire. Even though a Fox victory would actually rest on the arcana of defamation doctrine, it would inevitably be spun by the Trump machine as authoritative proof that the 2020 election was in fact “stolen.”
It could also embolden the Fox political talk show hosts to continue stoking outrage and enhance their power at the company vis-à-vis the hard news desk. In response, progressives might well join conservative Justices Thomas and Gorsuch in calling for the reversal or significant erosion of the Supreme Court’s press-protective First Amendment limitations on defamation law under New York Times v. Sullivan and its progeny. This would be a huge loss for accountability journalism by the press, open the door to unchecked authoritarianism in government, and undermine the checking value of journalism for democracy.
If the case settles, the public positions taken by both Dominion and Fox will mean the settlement will not be quiet and unnoticed. Each side will spin the settlement in its own favor. After all the sound and fury, the parties will have achieved little to nothing in the fight against political disinformation.
It would be regrettable if the broad disinformation frame and the tawdry facts revealed about Fox’s programming practices were to distract us from addressing an important question for constitutional press law: Should the First Amendment be read to allow the press to report defamatory but newsworthy charges against public figures—even if the reporters believe them to be false—so long as they do so in a neutral manner with enough context for audience understanding?
The cynical and hypocritical behavior of Carlson and Hannity does not in fact present this issue, but it is the real question courts should be asking as they struggle with today’s opinionated media landscape and the public’s need for unsparing accountability journalism.
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