A threat to every journalist
After the 2020 election, Fox News was guilty of professional malpractice and ethical corruption. Faced with a choice — between telling viewers the truth about Donald Trump's loss, or feeding their fantasies with blatant lies — Fox favored profit over proof, income over integrity.
When Fox chairman Rupert Murdoch was deposed in a lawsuit brought by Dominion Voting Systems, which claims it was defamed by those lies, he confessed his monetary motive: “It is not red or blue,” Murdoch said, “it is green.”
Bill Sammon, Fox's former managing editor who was fired for his truth-telling about the election, summed up his own network's sins: “It's remarkable how weak ratings make good journalists do bad things.”
All true. But “bad things” that are ethically reprehensible are not necessarily illegal. And all those liberals who are gleefully gloating about Fox's fate better be extremely careful about what they wish for. A Fox loss in the Dominion suit could set a dangerous precedent that threatens the rights of every journalist.
The controlling case in libel law, New York Times Company v. Sullivan, established an extremely high standard when it was decided by a unanimous Supreme Court in 1964. The court ruled that a defendant was only guilty if they acted with “actual malice,” defined as a “reckless disregard” for the truth of what they were saying.
The importance of that principle, and protection, cannot be overstated. “Sullivan is absolutely critical to protecting the right of journalists to do investigative reporting, to report on government corruption, to hold officials accountable,” says Samantha Barbas, a law professor who wrote a book about the case. If that principle were in any way diluted, she added, “I really do think that it would have a chilling effect on the press.”
Speaking to the Associated Press, Jane Kirtley, a First Amendment expert at the University of Minnesota, voiced a common concern among lawyers and scholars about the Dominion case: “My wish is that the parties would settle and this case would go away. I don't see any good coming out of it.”
Their fears are magnified by a larger campaign against the Sullivan decision. The two leading candidates for the Republican nomination in 2024, Trump and Florida Gov. Ron Desantis, have both urged the court to weaken protections for journalists.
In a separate defamation case, Trump's lawyers called their suit a “perfect vehicle” to challenge Sullivan. Desantis last month convened a panel on possible ways to undermine that ruling, and his acolytes in the state legislature then drafted several bills to accomplish just that. Their obvious aim, wrote Ian Millhiser in Vox, is to “tee up a lawsuit testing whether the Supreme Court has five votes to overrule Sullivan.”
Two conservative justices, Clarence Thomas and Neil Gorsuch, have already indicated a willingness to revisit that key opinion, and Floyd Abrams, one of the country's leading First Amendment lawyers, told The New York Times that there is “a growing sense in the conservative community that this is their day to set aside New York Times v. Sullivan.”
“Mr. Abrams and other legal experts point to the court's recent decisions on abortion and gun rights as signs that it may be willing to revisit other longstanding precedents,” the Times reported. “For Mr. Abrams, the attacks on what he considers `the gold standard in the world for the protection of the press' are thinly veiled attempts to shelter the country's most powerful figures from the scrutiny that a healthy democracy requires.”
Fox's blatant campaign to “shelter” powerful figures on the right — and please an audience that boosts their profits — continues today. After House Speaker Kevin Mccarthy gave Tucker Carlson access to more than 40,000 hours of security tapes recorded on Jan. 6, 2021, the Fox star called the rioters “sightseers” and produced an hour-long broadcast that totally whitewashed the insurrection and Trump's culpability.
Even former Vice President Mike Pence gagged at yet another effort by Trump and his supporters to evade reality. “Make no mistake about it,” he told a Washington dinner, “what happened that day was a disgrace, and it mocks decency to portray it in any other way.”
From an ethical and professional perspective, Carlson and Fox are not journalists at all, but partisan propagandists. And yet, when it comes to libel law, Fox is a news organization. And when its lawyers argue that a defeat in the Dominion case “would have grave consequences for journalism across this country,” anyone who cares about a free and unfettered press should take that warning very seriously.