Lawsuits have been brought in several state and federal courts accusing accuse Project Veritas, Fox News, The Gateway Pundit, One America News and other conservative news and commentary sources of intentionally making false claims of voter fraud after the 2020 election, harming innocent civil servants and businesses in the process. Apparently a lot of “legal scholars” who typically take the side of the news media in such cases, like Sarah Palin’s recent lawsuit against the New York Times which she lost last month, feel differently about these lawsuits. Many First Amendment lawyers are rooting for a finding of liability in the cases to make it possible to punish the intentional or extremely reckless dissemination of false information while protecting the press from lawsuits over inadvertent errors.
You see, false information disseminated by a conservative news source is intentional disinformation, while false information disseminated by a mainstream media news source is just an inadvertent error. Clear?
New York Times v. Sullivan established the “actual malice” standard for defamation, which requires that a suing public figure must prove a person or media outlet knew what it said was false or acted with “reckless disregard” for the high probability that it was wrong. The lawsuits against the conservative outlets argue that by uncritically presenting “disinformation” from guests (Like Sydney Powell, above) who questioned the legitimacy of the 2020 election, the news sources were endorsing defamation and became a malicious party to it. The Times writes,
As a defense, Fox and others invoke the First Amendment and Sullivan, arguing that their reporting on the 2020 election and its aftermath is legally indistinguishable from the kind of basic, just-the-facts journalism that news organizations have always produced. Fox has portrayed itself as a neutral observer, saying it did not endorse claims about hacked voting machines and systemic voter fraud but instead offered a platform for others to make statements that were unquestionably newsworthy.
As Fox News mounts its defense in the Dominion case and in a lawsuit by another voting systems company, Smartmatic, the network’s lawyers have argued that core to the First Amendment is the ability to report on all newsworthy statements — even false ones — without having to assume responsibility for them.
When was the last time news organizations, especially Fox News (and the New York Times!) practiced “basic, just-the-facts journalism”?
I hope Fox News loses too, but because I don’t think the Times et al. will be able to keep the precedent from coming back to haunt them. It is telling, though, that these Freedom of the Press absolutists in the legal world suddenly lose their verve when conservative media are being sued.