Reckless disregard for the truth is not protected under the First Amendment!
Fifty-nine years ago the Supreme Court made it exceedingly difficult to win a defamation case against the media. A plaintiff had to prove the media deliberately falsified the facts and did so with malice. Coming out of the 2020 election we now see a case that threads that narrow needle. Center Director Jeffrey Cole digs in.
By Jeffrey Cole
It has always been an easy call.
The press should be, now and forever, free of any restrictions, impediments, or laws that hinder its ability to cover news. Its rights should always be placed in a preferred position when balanced against any others. Any law, tax benefit, or effort supporting the stability or growth of news, whatever the political flavor, is a good thing. John Stuart Mill’s 19th century argument for the free marketplace of ideas is more vital today than ever.
What has always been an easy call for me—support the media even if they make mistakes in gathering the news—is no longer so easy. This pains me. Fox News deserves to lose this lawsuit, and it is likely that it will lose when a jury sees those texts. Never has reckless disregard for the truth been so clear-cut.
Equally clear is that the disappearance of newspapers and the weakening of broadcast and cable news is a bad thing. Had a strong local newspaper not folded in Long Island, New York, George Santos would not be sitting in Congress today. His obvious lies would have been quickly detected by a paper able to focus on one local campaign rather than a national newspaper like The New York Times reporting on hundreds of political contests.
The Supreme Court was correct in its 1964 landmark New York Times vs. Sullivan decision that made it almost impossible to win a defamation case against the news media. That’s as it should be. Anything else would create so much fear of retribution that the news media could not do its job. Then, just like the citizens of Santos’ congressional district, we would all pay the price.
I always root for the media.
A current case has tested my support of total news freedom. For the very first time, I have come down against the media, and I’m conflicted.
Rather than gracefully concede defeat in 2020, Donald Trump decided to argue that the election was stolen from him in a desperate effort not to appear to be the loser the votes showed him to be. Sensing defeat, he planted the seeds of this effort months before the election.
Trump and his incompetent team of lawyers, supporters, and ne’er-do-wells grabbed at any argument they could find. After being unable to support stories of suitcases full of ballots, teams of biased poll workers, and missing mail trucks, they latched on to the machines that counted the votes.
They concocted (apparently out of thin air) the theory that the voting machines deliberately switched votes from Trump to Biden. They went further, falsely claiming that the machines were owned by a company, Dominion, which was based in Venezuela and had been founded by Hugo Chavez.
Trump’s cronies, particularly Rudy Giuliani, Sidney Powell, Jenna Ellis, Mike Lindell (The MyPillow guy), as well as Trump himself, went on any news channel that would have them to spread these false and damaging lies for months. What was face-saving for Trump was hugely damaging to the reputation and revenues of Dominion and its competitor, Smartmatic.
The two companies went to court and sued the conservative news outlets that continued to spread the lies. Smartmatic, although not accused of being controlled by the ghost of Hugo Chavez (who died in 2013), had also been damaged and defamed. Both companies sued Giuliani, Lindell, and Powell, but the case was mostly directed at the conservative cable channels: One America News Network (OAN), Newsmax, and Fox News.
Why Fox News Mattered More
The lawsuit’s real target was Fox News and the extraordinarily deep pockets of the Murdoch family. A win against Trump’s allies or the other conservative news channels is likely to return at best, modest awards.
Fox News has the most to lose. It could actually have to pay a multi-billion dollar judgment or settle for hundreds of millions of dollars. Such a victory would bankrupt anyone but Fox News.
Normally Fox News and the others could easily brush off this kind of suit in a quick summary judgment. That’s as it should be. The Supreme Court’s Sullivan decision said that to win a defamation case the plaintiff must demonstrate that the media showed “actual malice” by knowing the charges were either false or demonstrated “reckless disregard for the truth.”
Reckless disregard would mean they didn’t engage in the most basic efforts (phone calls, internet searches) to see whether what they claimed was true. They simply reported with no effort to verify.
Fox News did even less than that.
Fox News’ efforts to have the case dismissed have been unsuccessful. They are unlikely to settle—even if doing so is in their financial best interest—because such a settlement would be a horrendous admission of guilt, forever damaging their reputation.
The Supreme Court was correct in its 1964 landmark New York Times vs. Sullivan decision that made it almost impossible to win a defamation case against the news media. That’s as it should be. Anything else would create so much fear of retribution that the news media could not do its job. Then, just like the citizens of Santos’ congressional district, we would all pay the price. I always root for the media. Until now.
The case is headed to a trial unlikely to be favorable to Fox News.
Through the discovery process, the voting machine companies got access to emails, texts, and other communication among Fox News’ (as well as the other channels’) reporters, anchors, commentators, executives, and staff.
Some of those emails and texts have been released: they are explosive.
The texts help the plaintiffs to make a compelling case that the Fox News team knew the allegations were false. These documents show that while Fox News—especially Tucker Carlson, Sean Hannity, Laura Ingraham, Judge Jeanine Pirro and Maria Bartiromo—were supporting the Trump cronies’ allegations on the air and giving them oxygen, behind the scenes they knew the charges were completely without merit and that those making them were at best lying, and at worst crazy.
The Fox News team treated Trump’s unhinged lawyer, Sidney Powell, respectfully on camera as she made her allegations and promised to “release the Kraken.” The hosts nodded in agreement while the cameras were on, but privately they called her a liar (Carlson) and a “complete nut who no one will work with” (Ingraham).
This is the smoking gun for reckless disregard. Rarely does it come this clearly.
This is the most immoral thing Fox News has ever done. The network’s on-air talent was saying that not only does its audience not deserve the truth, but they will also work actively to keep it from them.
Carlson said in private texts (he clearly never intended or imagined they would be released) that knocking down the allegations (telling the truth) would deflate the Fox News stock price and cost them all money.
This from the news organization that, until 2017, had the motto “fair and balanced.”
Carlson’s concerns make clear nothing about Fox News is intended to add to the marketplace of ideas or help inform citizens. It is all about making money. He happily will say or do anything, with no standards whatsoever, if it supports his financial gain.
This is the case that threads the needle the Supreme Court set up fifty-nine years ago that made it difficult to interfere with the media’s right to report the news.
What has always been an easy call for me—support the media even if they make mistakes in gathering the news—is no longer so easy. This pains me.
Fox News deserves to lose this lawsuit, and it is likely that it will lose when a jury sees those texts.
Never has reckless disregard for the truth been so clear-cut.
Jeffrey Cole is the founder and director of The Center for the Digital Future at USC Annenberg.
See all columns from the center.
February 28, 2023