© Maurice R. Dyson
Fox invokes the 1st Amendment to justify its broadcast against Dominion for repeating its suspicious allegations of Dominion's voter machine rigging, thereby also invoking the highest standard of proof in defamation cases referred to as constitutional malice. Yet proving malice is not proving maliciousness in behavior but rather than simply knowing that the statement was false, or at least having "serious doubts as to the truth of" the allegation. This is what is referred to as reckless disregard and it is an important because the very reason behind the First Amendment exception for defamation is that there is no constitutional value in false statements of fact. It is a high legal standard and one that at times is difficult to prove. It is a high standard to meet because the Supreme Court recognized defamation law must give way to the First Amendment in New York Times v. Sullivan. There it was said that the First Amendment required it in order to allow more public commentary and scrutiny of public officials and matters of legitimate public concern. The Restatement of Torts notes, it's generally not defamation to "publish a defamatory rumor or suspicion concerning another," even if you "know or believe the rumor or suspicion to be false," if you "state the defamatory matter as rumor or suspicion and not as fact."
A democracy relies upon a thriving and informed citizenry to check and curb the government appetite for unconstitutionally usurping power. And while it seems a sad state of affairs in a democracy when Washington beltway elite insiders know what rumors are swirling around, but ordinary voters are denied access to those rumors, Fox arguably has grounds to assert that the newsworthiness of the fact itself protects it under the fair reporting privilege of the First Amendment. What is newsworthy is often much so because it is salacious as it is damaging. But what is newsworthy should be only those matters of legitimate public concern.
Still, it would be naïve to believe that rumors are not weapons, because they very much are, and even more powerful dynamite in political contexts in presidential cycles. Recollections of false allegations of McCain’s Black baby is a false rumor we know can carry currency in the Texas south among voters in a presidential election cycle against George W. Bush just as false allegations of an intimate affair with a presidential hopeful politician, or Kerry’s falling out with swift boat vets did. Rumors, like anger, pedaled by news outlets are weapons of mass distraction, mass denigration and mass subliminal labeling of neurolinguistic programming. That is, say something enough with emotional appeal to be invested long enough, and cognitive science and consistent evidence tells us people will believe it, even if it is not true. And politicians, advertisers and business leaders have known this much longer than the consuming public which still remains largely unaware of the full extent of its invasion into our cognitive faculties and subconscious habits of thought and behavior. In this world where emotional technology in algorithms are weaponized against voters and humans, news outlets have a duty not just to repeat allegations.
And so it seems the world knows what the Supreme Court does not. Times have changed, tools have changed, and legal standards must too, where a scalpel and not a hatchet is used to preserve news integrity with what is deemed newsworthy. If newsworthiness were all that matter, then such a supermarket tabloid mentality would overwhelm first amendment jurisprudence. Yet judicial notice of the rampant rise of fake news, spoofing, deep fakes and outright malicious rumor mills in news that subvert democracy, the integrity of election information, and voter turnout is possible, though not probable. But perhaps for a political party (and a high court protective of it) that has not won the popular vote in the last several presidential election cycles, that is exactly the point.
When it comes to elections, it seems if you can’t beat them, discredit them. This destruction of voting integrity done by the Citizens United case that brought unlimited amounts of dark money into our domestic elections. This is in addition to all the anti-majoritarian tools of racial redistricting, voter suppression, closing polls, policing polls, cutting electoral worker staff budgets, criminalizing aid to those standing to vote and an attempted political coup are tools designed to suppress righteous calls for justice minded judicial redress. In a browning America where the term white minority now shifts to those status quo and Mason Dixon minded desperately clinging to power for fear engineered and instilled in them in America's apartheid, we can add one more weapon to that list: Unqualified, unvetted, salacious rumor and its mass propagation for political purposes.
But for legal purposes, reckless disregard is verifiable. Reckless disregard may be demonstrated if Fox's text messages and emails may demonstrate skepticism of false claims of a stolen election as to show the networks executives entertained serious doubts as to its truthfulness and veracity. Furthermore, the suit reports that "Fox's correct call of Arizona for Joe Biden triggered a backlash among its audience and the network [was] being rejected." Thus, if evidence exists showing network executives so worried about how fact-checking those assertions on the air might be received by its own conservative audience, that may suggest not only knowledge, but purposeful action motivated by business revenue, political loyalty, not necessarily its constitutionality. As the suit notes: "It's remarkable how weak ratings make good journalists do bad things." Besides knowledge the case for reckless disregard is made greater if Dominion's allegations prove to be true. The repetitive nature alleged in Fox's communication make it even more problematic. "Normally a defendant does not continue to broadcast lies even after the plaintiff sends verifiable information demonstrating their falsity . Here, however, Fox continued to broadcast these debunked claims even after Dominion sent notification after notification to Fox," the suit alleged. The neutral reportage doctrine or analogous newsworthiness privilege as an absolute defense under New York law is debatable and nevertheless fails if the publisher "endorses or distorts the charges or otherwise fails to provide accurate and disinterested reporting." Edwards v. Nat'l Audubon Soc., Inc.
It takes a lifetime for a person or company to build a consistent reputation of character on integrity, and only a matter of seconds for the mean-spirited to trash it by spreading false and damaging rumor. The press is said to be a sacred public trust, trusted with giving fact checked news that is reliable. That is the marketing we often hear from news outlets. Should media companies be estopped from disclaiming public representations of consumer marketing that set the impression of a high industry standard of reliability so at odds with it much lower legal standards of constitutional malice? When we know better, should we not aim to do better? The marketplace of ideas is not a competitive cauldron for informative debate or innovation, if only unchecked rumors and repetitive rumor mill newsrooms rule the day. A public trust comes with a higher duty of care than just being a megaphone of gossip, but a trusted curator of reliably sourced information. And for those lawyers, journalists, public advocates and scholars like me still clinging to this oft espoused ideal, we remain of the mind that news outlets should strive to be more than a repetitive rumor mill of political invention and manipulation, but of one of public education and informed deliberation.
Maurice R. Dyson teaches defamation law and is a Professor of Law at Suffolk University Law School and principle DEI business consultant at Dyson Consulting LLC, www.mauricedyson.com