Just suppose that Fox News’s lawyers convince the jury that the network, in broadcasting the false and damaging statements about Dominion, didn’t proceed with “actual malice.” That’s the standard that emerged from the landmark 1964 case New York Times v. Sullivan, which provided robust protections to media organizations when reporting about public officials. (The protection was later broadened to public figures.)
The standard itself requires plaintiffs to prove that the media outlet published a knowing falsehood or acted with “reckless disregard” of its truth or falsity. The hundreds of pages of discovery materials in the case show that hosts and executives knew that some of their programming about the 2020 election was a sham. A Fox News victory in Davis’s courtroom, accordingly, could be seen as enshrining the media’s right to lie. An appropriate statement on the courthouse steps would be: We are the media, and we can smear anyone we please.
Supreme Court Justice Clarence Thomas has repeatedly stated his wish to revisit and possibly overturn Sullivan; Justice Neil M. Gorsuch has declared himself open to reconsidering it. It’s no coincidence that two conservative justices are so arrayed, considering that hostility toward Sullivan and the mainstream media is heady on the American right. Florida Gov. Ron DeSantis and like-minded state legislators, for example, have embarked on an initiative to undermine Sullivan.
Yet a Fox News victory in the case might well convince liberals, too, that the standard needs to go. If “actual malice,” after all, isn’t pliable enough to condemn Fox News’s conspiratorial treatment of Dominion, what good is this doctrine?
The truth, however, is that Sullivan is a form of constitutional safety net for networks that thrive on persistent falsehoods, including Fox News. Weakening the standard would complicate life for Fox News and actual news outlets — a legacy consideration for Murdoch as things head to trial.
Perhaps he should be more scared of winning than losing.
