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Dominion’s Weak Case Against Fox (by William Barr)

Hey, Dominion would like a free holiday at Fox's expense and Fox's competitors whose ratings have tanked since the Trump era, can't compete fair and square so they pile on, distorting the truth.

BTW, I'm no huge fan of Fox, but Dominion's suit is a joke.

Dominion’s Weak Case Against Fox

Victory for the plaintiff would severely weaken the First Amendment protection all news media enjoy.

By William P. Barr, WSJ

March 23, 2023 6:27 pm ET

The mainstream press has reacted predictably in recent weeks after Fox News’s internal communications and witness depositions were disclosed in Dominion Voting Systems’ defamation lawsuit against the network. Blinded by resentment at Fox’s success as an alternative media voice, many media organizations offered a distorted narrative—largely parroting Dominion’s spin—that the disclosures doom Fox’s legal defense. Commentators from the New York Times, Washington Post, CNN, MSNBC and other outlets, gleeful at the prospect of a Fox setback, cheer on as the defamation case heads toward a trial date.

But the real significance of the disclosures is exactly the opposite of what these media outlets claim. Two things are clear: First, if the applicable law is faithfully applied, the facts completely upend Dominion’s defamation claim against Fox. The case should be decided in Fox’s favor, if not at the trial stage, then on appeal.

Second, a ruling against Fox would be a major blow to media freedoms generally, subjecting news outlets to the prospect of outsize liability whenever they report on newsworthy allegations that turn out to be false.

Right after the 2020 election, President Trump and his team repeatedly alleged that Dominion machines had been used in a voting-fraud scheme. Although these allegations weren’t substantiated, as attorney general, I couldn’t immediately discount them. Finding the truth required an investigation, which I authorized. Over the next few weeks we found no substantiation or discrepancies, and based on expert assessments I became increasingly convinced the claims against Dominion were unfounded.

Meanwhile, several Fox News hosts interviewed members of the president’s team—Rudy Giuliani and Sidney Powell chief among them—about their Dominion claims and whether they had evidence to support them. As the record shows, the hosts presented the claims as unproven allegations and didn’t say they were true. Nonetheless, Dominion is suing Fox News for $1.6 billion in damages (20 times Dominion’s 2018 valuation), claiming that in reporting on the Trump team’s allegations, Fox effectively was promoting them as true.

Emotions seem to have gotten the better of the mainstream media’s judgment. The theory advanced by Dominion is profoundly dangerous to the media industry as whole. Memories are very short and imaginations very limited if the left thinks that only Fox would be vulnerable to lawsuits in a world where defamation liability could be incurred for simply reporting allegations made by others. Does anyone remember the endless false claims of “Russian collusion” that dominated the news from the 2016 presidential election through most of the Trump administration; or the false “Iraqgate” claims with which George H.W. Bush was bombarded during his 1992 re-election campaign; or the lurid allegations, which were given wall-to-wall cable news coverage, that Michael Avenatti made during the Senate confirmation of Justice Brett Kavanaugh?

The press can report on these matters without incurring liability for defamation because existing laws give them wide latitude to do so to encourage uninhibited discourse on matters of public concern. The scope of this legal protection is well-settled, and Fox acted well within it for three reasons. First, it isn’t defamatory for journalists to report on newsworthy allegations made by others, even when those allegations turn out to be false. As long as claims are presented only as allegations and not asserted to be true, legal responsibility for any defamatory content rests with those making the allegations, not the news outlet. If you examine the relevant statements by Fox hosts in context, it is clear the company was simply reporting the allegations, not reporting that those allegations were true.

Second, defamation applies only to false statements of fact, not statements of opinion. Thus, it isn’t defamatory for a journalist to provide commentary—stating an opinion about an allegation—as long as he doesn’t assert that the defamatory aspects of the allegations are true. Thus, in Fox’s case, to the extent hosts made comments suggesting the claims were troubling, or serious, or warranting an investigation, those comments were opinions and can’t serve as the basis for a defamation claim.

Finally, it has long been held that First Amendment considerations require giving media speakers more “breathing space” for protecting unintentional false statements made when reporting on issues of serious public concern or on actions of key players in those controversies. These cases are governed by the “actual malice” standard first enunciated by the Supreme Court in New York Times Co. v. Sullivan (1964). In these circumstances, a media speaker isn’t liable for defamation, even for a false statement of fact, unless he knows when he makes the statement that what he is saying is false or gravely doubts its truth.

What counts is the speaker’s state of mind. Serious doubts that others in the speaker’s organization may have about a statement’s truth can’t be attributed to the speaker. Thus, in Fox’s case, even if Dominion could show that a Fox host who interviewed Mr. Giuliani or Ms. Powell affirmed their allegations as true, none of the evidence marshaled by Dominion establishes that any of those hosts had grave doubts about the allegations and hence acted with “actual malice.” Instead, Dominion’s evidence relates to possible doubts held by other Fox employees, not the hosts, and is therefore irrelevant.

Although some conservatives have expressed a willingness to consider paring back Sullivan’s actual-malice standard in at least some kinds of cases, it plainly wouldn’t make sense to do so here. This case involves reporting on a presidential election—a contest of paramount public concern that has historically featured false allegations. It also involves reporting on a dispute over the integrity of the election. In these contexts, the public interest in fostering a fully informed electorate through robust debate is at its apex. Subjecting the press to potential defamation liability when it reports on these kinds of controversies would chill the flow of information. It would also result in every election being relitigated for monetary damages, in the deepest blue or red state a lawyer can find.

Conservatives shouldn’t try to weaken the actual-malice standard. For the foreseeable future, we will likely be on the wrong side of the culture-setting consensus. Even when accurate, our views are apt to be treated as “misinformation,” as the reaction to the Hunter Biden laptop story aptly demonstrates. There are precious few conservative news outlets as it is. Why make them more vulnerable to the multitude of left-wing plaintiffs’ lawyers?

The left should think twice about cheering for Dominion in this case. While the left has more artillery, it also has more targets for defamation cases as left-wing media outlets far outnumber conservative ones. According to a Gallup poll, only 34% of Americans believe major news organizations will report “fully, accurately and fairly” on current events. Errors have been rife. And then there is the lesson of Harry Reid: Deploying the “nuclear option” and eliminating the judicial filibuster led to a conservative supermajority on the Supreme Court. A weapon unsheathed by one side today can be turned against it the next.

Mr. Barr, who served as U.S. attorney general, 1991-93 and 2019-20, is a distinguished fellow at the Hudson Institute and author of the memoir “One Damn Thing After Another.” The memoir’s publisher, HarperCollins, and the Journal are both owned by News Corp, which shares ownership with Fox Corp.

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