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Why the Legal Case against Fox News Might Fail
On the menu today: An in-depth interview with Paul Clement, the former solicitor general representing Fox News in the defamation lawsuits filed by Dominion Voting Systems and Smartmatic.
Inside Fox News’ Defense against the Defamation Claims
Over in that other Washington publication I write for, I have a column built around an interview with Paul Clement, the former solicitor general under George W. Bush and the lawyer representing Fox News in the $1.6 billion defamation lawsuit filed by Dominion Voting Systems Corporation and a similar $2.3 billion defamation lawsuit filed by Smartmatic.
At issue in the Dominion and Smartmatic cases is not whether you like Fox News, or whether you liked or disliked how they covered former president Donald Trump’s claims that the 2020 election was stolen, or whether all the emails and text messages released in the discovery process are embarrassing to the network. (Make no mistake: They are.)
The case hinges upon the voting-machine companies’ proving that something Fox News said or did during the post-election period was not covered by the First Amendment’s protections as they relate to defamation. One of the first points in Fox News’ defense is that Dominion and Smartmatic may have legitimate defamation claims against President Trump, Rudy Giuliani, Sidney Powell, or any number of other Trump-campaign surrogates who made false claims about the voting systems. In an early filing in this legal battle, Clement wrote: “If those surrogates fabricated evidence or told lies with actual malice, then a defamation action may lie against them, but not against the media that covered their allegations and allowed [the guests] to try to substantiate them.”
Clement and Fox News are arguing that journalists cannot and should not be held financially and legally liable for the answers of their guests after they ask a question.
“From the Fox perspective, the principle here is incredibly important,” Clement told me. “This isn’t going to be the last story where there are allegations that are newsworthy, and they’re newsworthy because the president is making them, or a governor is making them, or a presidential candidate is making them.”
Both cases are filed in New York State court, and New York law governs the substantive-defamation issues in each. In a 1995 case, Brian v. Richardson, the New York Court of Appeals held — in the context of allegations of election interference printed on the op-ed page of the New York Times in 1991 — that a reasonable viewer, when considering a statement in the “over-all context in which the assertions were made,” would understand the statement “as mere allegations to be investigated rather than as facts.” In other words, reporting an allegation does not, by itself, meet the legal threshold for defamation.
In Brian v. Richardson, one of the key points was that the claims appeared on the op-ed page and thus were sufficiently labeled as opinion. Clement argues that this is comparable to the claims on programs like that of Lou Dobbs.
Dobbs was one of the Fox News hosts who most ardently and enthusiastically embraced the claims that the election was stolen, and that sinister machinations had altered the vote totals. On November 30, 2020, Dobbs thundered, “This president has to take, I believe, drastic action, dramatic action, to make certain that the integrity of this election is understood, or lack of it, the crimes that have been committed against him and the American people.” Dobbs had his program canceled in February 2021.
But Clement argues those are expressions of opinion protected by the First Amendment; many cases have established the precedent that an opinion is not a statement of fact and is not defamatory, as it expresses the speaker’s subjective views.
“A lot of [Dobbs’] statements that come the closest to supporting what Giuliani or Powell said, those statements themselves are protected opinion,” Clement told me. “The broader nature of the Lou Dobbs show is important context for trying to figure out whether that’s opinion or not. . . . These are the statements that come closest to pure opinion, which is independently protected under the First Amendment.”
Jeanine Pirro concluded an interview with Powell on November 18, 2020, and said, “Sidney Powell, good luck on your mission.” Some will contend that statement goes beyond reporting what Powell is claiming and represents a de facto endorsement of Powell and her unproven conspiratorial allegations. But Clement contends that’s reading too much into Pirro’s words.
“If you’re going to say things like, ‘good luck’ or ‘thanks for coming in,’ and you’re going to interview sympathetically, maybe one network is going to get a guest to come on that another network isn’t going to get,” Clement told me. “But that’s all got to be protected, because that’s the freedom of the press in action, as far as I’m concerned. . . . The law can’t be that you’re protected if you report the allegations skeptically, but you’re not protected if you report the same allegations sympathetically. That’s how we get to the truth in some of these situations.”
Clement contends that there’s a curious omission from the Dominion lawsuits against Fox News: Maria Bartiromo’s interview with Donald Trump November 29, 2020 — his first television interview after the election — in which the president ranted:
You have leaders of countries that call me, say, that’s the most messed-up election we have ever seen. You start with these machines that have been suspect, not allowed to be used in Texas, the Dominion machines, where tremendous reports have been put out. We have affidavits on — from many people talking about what went on with machines. They had glitches. You know what a glitch is. That’s — a glitch is supposed to be when a machine breaks down. Well, no, we had glitches where they moved thousands of votes from my account to Biden’s account. So, they’re not glitches. They’re theft. They’re fraud, absolute fraud. And there were many of them, but, obviously, most of them tremendous amounts, got by without us catching.
If any statement after the election qualifies as defamation of Dominion, Trump’s would be it. But it’s not cited in the Dominion suit, likely because no one in their right mind would dispute that the fact that the sitting president was making such claims was legitimate news.
“If you take a step back and think what statements and by whom would have most moved the needle on people’s perceptions of Dominion, it has to be President Trump saying it moves the needle more than Sidney Powell saying it,” Clement said Friday. “It’s the most newsworthy thing imaginable.”
With the release of all the embarrassing texts and emails, Dominion may well be winning the fight in the court of public opinion.
“Does it make the job a little more difficult or a little more challenging? Sure,” Clement admits. “But I think everybody in the legal process is or should be used to this, and so I think we will be able to focus in on the relevant questions.”
“My job is to focus on what I can control and what’s inside the courtroom,” Clement told me. “I’m not surprised that Dominion has played it the way that they have. Have they had fun in the discovery process? Sure. But ultimately what’s going to matter in the trial court and in the courts of appeals is the broader First Amendment principles that are at stake here.”
Clement points out that the law’s definition of actual malice focuses entirely upon the speaker, and that the views of other figures in the institution are immaterial. “Under the First Amendment, it doesn’t and shouldn’t matter that somebody else in the Fox corporate chain had a different view of these allegations than Lou Dobbs or Maria or Jeanine Pirro . . . in a court of law, those kinds of distinctions matter a great deal, and all that really matters is the intent of the speaker at the time of the speech.”
Clement laid out how this case will have far-reaching ramifications for conservative media, or any media organization that goes against the grain of the coverage of other news organizations.
“It is pretty obvious, given where we are right now, when there are allegations or denials, Fox is going to report them differently than they’re going to be reported in a lot of the mainstream press,” Clement told me. “In order for the First Amendment principles to work here, they have to be neutral. Conservative media faces a built-in challenge in these libel and defamation cases. If the New York Times gets sued, it’s going to be able to point to a dozen other mainstream-media household-name media companies that reported the same thing in a same way. It’s like they have a built-in defense. Given the way the media works, in the balance of reporting, the conservative media, or somebody like Fox, is in a much more vulnerable position. If they report it, and the underlying allegations aren’t true, they’re much more out there on an island.”
From my perspective, Fox News earned a lot of fair criticism for the way it handled the nonsensical conspiracy theories put forth by Trump and unhinged acolytes such as Giuliani and Powell. But the country, and all its news organizations, were in uncharted waters. We’ve never had a president whose legal advisers made up stories about Venezuelan hackers or the CIA director having been injured in Germany while trying to seize an election-related computer server. Individuals who were in traditionally powerful positions — the president and his private legal team — were utterly deranged. Sidney Powell later contended in a filing in federal court that “no reasonable person would conclude that [her] statements were truly statements of fact.”
But there’s a wide gap between the questions, “Is this good and responsible journalism?” or “Did Pirro, Dobbs, and the rest handle these cockamamie conspiracy theories with the appropriate level of skepticism while on camera?” and the question, “Is this the kind of decision that makes a company liable for a collective $4 billion in damages?” And it’s very tough for a court to impose sanctions upon Fox News without inflicting collateral damage on the current First Amendment protections of journalists.
