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Dominion Voting’s Libel Suits, the First Amendment, and Actual Malice

If the Supreme Court gets involved, the defamation cases against Fox News and One America News could end up changing longstanding rules relating to the press.

Woman walks past a Dominion Voting machine
Ben Gray/AP

In the wake of the 2020 elec­tion, the machinery of disin­form­a­tion began spread­ing the Big Lie that a massive and coordin­ated elect­oral fraud campaign led to Pres­id­ent Trump’s defeat. Some of this disin­form­a­tion came from his legal team as well as the pres­id­ent himself, and these false claims were ampli­fied and spread by far-right broad­casts on networks such as One Amer­ica News Network (OAN) and Fox News. While politi­cian Sarah Palin recently failed in a defam­a­tion suit against the New York Times, a company called Domin­ion Voting Systems Inc. may well succeed in its defam­a­tion suit against these two news organ­iz­a­tions. 

Each news organ­iz­a­tion trained its sights on Domin­ion Voting Systems Inc., a manu­fac­turer of voting machines used in 28 states. The accus­a­tions were so vile and repet­it­ive that Domin­ion filed defam­a­tion suits against Fox, OAN, and attor­ney Sidney Powell, a member of Trump’s legal team, among others. In the suit against Fox, Domin­ion stated that “[i]f this case does not rise to the level of defam­a­tion by a broad­caster, then noth­ing does." In its filing on OAN, the complaint argued, “OAN helped create and cultiv­ate an altern­ate real­ity where up is down, pigs have wings, and Domin­ion engaged in a colossal fraud to steal the pres­id­ency from Donald Trump by rigging the vote.”

After the 2020 elec­tion, Powell alleged that Domin­ion’s voting machines were unre­li­able, hacked, or flipped votes. When she tried to get the Domin­ion’s defam­a­tion case dismissed, the district court ruled against her, stat­ing, “Powell contends that no reas­on­able person could conclude that her state­ments were state­ments of fact because they ‘con­cern the 2020 pres­id­en­tial elec­tion, which was both bitter and contro­ver­sial.’ . . . It is true that courts recog­nize the value in some level of ‘ima­gin­at­ive expres­sion’ or ‘rhet­or­ical hyper­bole’ in our public debate. But it is simply not the law that prov­ably false state­ments cannot be action­able if made in the context of an elec­tion.”

These suits test the reach of the First Amend­ment and the extent to which lies are considered protec­ted speech. The Supreme Court has determ­ined that published lies or inac­curacies are entitled to at least some First Amend­ment protec­tion in many instances as the price of facil­it­at­ing polit­ical debate and delib­er­a­tion in our demo­cracy. The Court also decided, however, that when “actual malice” is present, that protect­ive cover­age no longer extends. Is the Big Lie protec­ted by the First Amend­ment? Or do the actions of the press and the pres­id­ent’s lawyers meet the actual malice stand­ard?

The outcome of these suits may signal whether the Supreme Court is ready to over­turn preced­ent and put tighter reins on speech or if it will offer a new set of guidelines to determ­ine when elec­tion lies are uncon­sti­tu­tional and punish­able by law.

The actual malice stand­ard

Because some of Domin­ion’s defam­a­tion suits are against the press, they raise the issue of whether the actual malice stand­ard from the land­mark 1964 case of New York Times v. Sulli­van should remain in place.

Sulli­van was a case where a public safety commis­sioner in Alabama, L.B. Sulli­van, took offense to an ad in the New York Times that was rais­ing money for Martin Luther King Jr. and other civil rights lead­ers. The ad contained some factual errors that Sulli­van claimed defamed him. He sued and won a $500,000 judg­ment against the New York Times in lower courts. The Supreme Court reversed the decision, call­ing it “consti­tu­tion­ally defi­cient for fail­ure to provide the safe­guards for free­dom of speech and of the press that are required by the First and Four­teenth Amend­ments in a libel action brought by a public offi­cial against crit­ics of his offi­cial conduct.”

This case created the actual malice stand­ard, which states, “[t]he consti­tu­tional guar­an­tees require . . . a federal rule that prohib­its a public offi­cial from recov­er­ing damages for a defam­at­ory false­hood relat­ing to his offi­cial conduct unless he proves that the state­ment was made with ‘actual malice’—that is, with know­ledge that it was false or with reck­less disreg­ard of whether it was false or not.” This was a depar­ture from the common law tradi­tion, which had previ­ously provided defamed indi­vidu­als a greater abil­ity to sue the press and win.

The rationale for the Court’s decision in support of broader protec­tion for free­dom of the press — includ­ing the free­dom to publish errors and inac­curacies — was that it “consider[ed] this case against the back­ground of a profound national commit­ment to the prin­ciple that debate on public issues should be unin­hib­ited, robust, and wide-open, and that it may well include vehe­ment, caustic, and some­times unpleas­antly sharp attacks on govern­ment and public offi­cials.” Sulli­van provides protec­tion so that the press need not censor its critiques of elec­ted and appoin­ted govern­ment offi­cials.

Though Sulli­van ensured that the press could criti­cize those in polit­ical power, the Supreme Court expan­ded the actual malice stand­ard to public figures as well. While determ­in­ing who qual­i­fies as a public offi­cial is reas­on­ably straight­for­ward, “public figure” is inher­ently subject­ive and depends on how well-known a partic­u­lar plaintiff is. 

The Supreme Court did make clear that private indi­vidu­als (non-public figures and non-govern­ment offi­cials) were not covered by the actual malice stand­ard in part because it was so much harder for a private, non-famous indi­vidual to get their good name back after it was defamed. As the Supreme Court noted in Gertz v. Robert Welch, Inc., “private indi­vidu­als are not only more vulner­able to injury than public offi­cials and public figures; they are also more deserving of recov­ery.” Thus, the Court left the rules for defam­a­tion of private indi­vidu­als up to the 50 states. And it made clear that someone exper­i­en­cing 15 minutes of fame did not mean that they were a public figure. As the Supreme Court explains in Wolston v. Read­er’s Digest, “[a] private indi­vidual is not auto­mat­ic­ally trans­formed into a public figure just by becom­ing involved in or asso­ci­ated with a matter that attracts public atten­tion.”

There were criti­cisms of the actual malice stand­ard from the begin­ning. In their concur­rence in Sulli­van, Justices Hugo Black and William Douglas warned that “malice” was “an elusive, abstract concept, hard to prove and hard to disprove. The require­ment that malice be proved provides at best an evan­es­cent protec­tion for the right to crit­ic­ally discuss public affairs and certainly does not meas­ure up to the sturdy safe­guard embod­ied in the First Amend­ment.”

In the past few years, Justices Clar­ence Thomas and Neil Gorsuch have raised ques­tions about whether Sulli­van’s actual malice stand­ard should persist in cases where public figures have their repu­ta­tions tarnished by lies in the press. Thomas raised some eyebrows when he wrote a concur­ring opin­ion from a denial of certi­or­ari in McKee v. Cosby, a case in which a woman who accused enter­tainer Bill Cosby of sexual assault was deemed to be a limited public figure and consequently lost her defam­a­tion case because she could not satisfy the high actual malice stand­ard. He went on to argue that “New York Times [v. Sulli­van] and the Court’s decisions extend­ing it were policy-driven decisions masquer­ad­ing as consti­tu­tional law.”

In 2021, Gorsuch joined Thomas’ criti­cism in Berisha v. Lawson, in which the Supreme Court declined to hear a case where the plaintiff sued an author for defam­a­tion based on his char­ac­ter­iz­a­tion in the author’s book. Gorsuch wonders aloud, “[a]s Sulli­van’s actual malice stand­ard has come to apply in our new world, it’s hard not to ask whether it now even ‘cut[s] against the very values under­ly­ing the decision.’”

Domin­ion’s libel suits

Domin­ion is suing OAN and Fox News in separ­ate suits for repeatedly airing claims like the ones artic­u­lated above by Ms. Powell. Domin­ion’s suit against OAN is partic­u­larly stark in its alleg­a­tions:

To capit­al­ize on the interest its target audi­ence had in the false Domin­ion narrat­ive, OAN effect­ively depu­tized its Chief White House Corres­pond­ent, Chanel Rion, as an in-house spokes­per­son for all Domin­ion-related content. After prim­ing its view­ers with a steady diet of post-elec­tion program­ming falsely claim­ing Domin­ion rigged the 2020 elec­tion, OAN and Rion began produ­cing an entire line of program­ming exclus­ively devoted to defam­ing Domin­ion, descript­ively named ‘Domin­ion-izing the Vote,’ which branded OAN’s disin­form­a­tion and defam­a­tion campaign against Domin­ion into a single catchy phrase that is now synonym­ous with fraud­u­lently flip­ping votes.

The complaint also alleges that “in Febru­ary 2021, months after the 2020 elec­tion, OAN enlis­ted MyPil­low CEO Mike Lindell to broad­cast a series of multi-hour-long ‘doc­u­ment­ar­ies’ spread­ing disin­form­a­tion about Domin­ion. Lindell falsely claimed that Domin­ion was behind ‘the biggest cyber-attack in history,’ and that Lindell had ‘abso­lute proof.’” Thus, OAN was taint­ing Domin­ion’s brand through its constant level­ing of conspir­acy theor­ies against the company.

Domin­ion argued in its suit that OAN met the high burden of show­ing actual malice, stat­ing that OAN’s “defam­at­ory state­ments were accom­pan­ied with malice, wanton­ness, and a conscious desire to cause injury.” OAN’s efforts to dismiss this suit are still pending. 

While Fox’s actions were slightly less egre­gious than OAN’s beha­vior, Fox’s consid­er­ably larger audi­ence conceiv­ably did more damage to Domin­ion’s repu­ta­tion. As Domin­ion alleged in its complaint for defam­a­tion, “[t]hese lies trans­formed Domin­ion into a house­hold name. As a result of Fox’s orches­trated defam­at­ory campaign, Domin­ion’s employ­ees, from its soft­ware engin­eers to its founder and chief exec­ut­ive officer, have been repeatedly harassed. Some have even received death threats. And of course, Domin­ion’s busi­ness has suffered enorm­ous and irre­par­able economic harm.” 

Domin­ion tried to get Fox to correct its erro­neous state­ments in real time by send­ing writ­ten rebut­tals to false claims made by the network and its on-air person­al­it­ies. As Domin­ion alleged in its complaint: “even after Fox was put on specific writ­ten notice of the facts, it stuck to the inher­ently improb­able and demon­strably false precon­ceived narrat­ive and contin­ued broad­cast­ing the lies of facially unre­li­able sources—which were embraced by Fox’s own on-air person­al­it­ies—be­cause the lies were good for Fox’s busi­ness.” While Fox correc­ted the record with regards to Smart­matic, a differ­ent voting machine company, Fox did not relent on the matter of Domin­ion voting machines.

When the issue reached the courts, a Delaware state judge in the Domin­ion v. Fox case rejec­ted all of Fox’s First Amend­ment argu­ments and denied Fox’s motion to dismiss the case. Fox attemp­ted to argue that, as press, it was immun­ized from liab­il­ity for defam­a­tion if what they were report­ing was “news­worthy.” But this did not convince the judge, who concluded, “[t]he United States Supreme Court has attemp­ted to strike a balance between First Amend­ment freedoms and viable claims for defam­a­tion [and] declined to endorse per se protec­ted categor­ies like news­wor­thi­ness.”

The court noted “[t]he Complaint supports the reas­on­able infer­ence that Fox either (i) knew its state­ments about Domin­ion’s role in elec­tion fraud were false or (ii) had a high degree of aware­ness that the state­ments were false.” Moreover, the court found “that the Complaint alleges facts that Fox made the chal­lenged state­ments with know­ledge of their fals­ity or with reck­less disreg­ard of their truth.” The court concluded that it could “infer that Fox inten­ded to avoid the truth.”

How Domin­ion’s lawsuits may change First Amend­ment law 

Domin­ion’s billion dollar suits against Fox and OAN raise a host of thorny ques­tions: Should suits against the press for defam­a­tion be easier to win? Should state­ments about public figures and public offi­cials be held to the same stand­ard as state­ments about private citizens? Should a corpor­a­tion like Domin­ion be deemed a “public figure” for libel purposes? 

These ques­tions seem destined to reach the Supreme Court in one form or another, as demon­strated in the recently dismissed libel suit brought by former Alaska governor and vice pres­id­en­tial candid­ate Sarah Palin against the New York Times.

On the one hand, the abil­ity of the free press to report on ongo­ing events will involve inno­cent errors. On the other, defam­at­ory misstate­ments about persons or compan­ies can do far more finan­cial and repu­ta­tional damage today than they could in 1964 given the reach of cable news and inter­net audi­ences. The series of outrageous claims about Domin­ion’s voting machines could well make new case law and provide the Supreme Court a chance to artic­u­late which types of lies about elec­tions are action­able.

Domin­ion’s suits point to the direct harm to demo­cracy that disin­form­a­tion can cause. As NPR repor­ted, “Domin­ion’s court filing alleges that Fox ‘reck­lessly disreg­arded the truth’ – and that some of its view­ers believed the chan­nel’s narrat­ive with such fervor that they ‘took the fight from social media to the United States Capitol and at rallies across the coun­try to #Stop­TheSteal, inflict­ing viol­ence, terror, and death along the way.’” And moreover, “‘[t]he lies did not simply harm Domin­ion,’ the company’s lawsuit says. ‘They harmed demo­cracy. They harmed the idea of cred­ible elec­tions. They harmed a once-unshake­able faith in demo­cratic and peace­ful trans­fers of power.’” In other words, the small-d demo­cratic stakes could hardly be higher in these defam­a­tion cases about a voting machine company in the 2020 elec­tion.