*published with the generous permission of Teri Kanefield. Read her full blog and be prepared to be smarter.
by Teri Kanefield
On Monday, I was anticipating the release of the Fulton County special grand jury report, thinking that would be the most interesting legal news of the week. Nope. The most interesting revelations came from Dominion’s defamation lawsuit against Fox News.
I. Dominion v. Fox News
To recap: Dominion, the manufacturer of voting machines, is suing Fox News Network for defamation. Here’s the original complaint accusing Fox of “giving life to a manufactured storyline about election fraud that cast a then-little- known voting machine company called Dominion as the villain.”
Dominion alleged that Fox told four basic lies:
From the complaint:
As a result of Fox’s orchestrated defamatory campaign, Dominion’s employees, from its software engineers to its founder and Chief Executive Officer, have been repeatedly harassed. Some have even received death threats. And, of course, Dominion’s business has suffered enormous and irreparable economic harm.
Dominion is demanding $1.6 billion in damages, plus punitives and costs.
Punitive damages are awarded in addition to actual damages in certain circumstances. Punitive damages are considered punishment and are typically awarded at the court’s discretion when the defendant’s behavior is found to be especially harmful.
The idea behind punitives is to deter future bad behavior.
This week Dominion filed a Motion for Summary Judgement. It’s here and it’s
— 180 pages filled with documentation that Fox personalities and executives knew they were lying but lied anyway because the truth created a backlash against them from their viewers.
Here is a sample page showing quotations from leading Republicans, Fox personalities, and Fox executives:
The brief goes on like that. Check it out here.
As an aside, given the prevalence of electronic communication, proving things like intent and knowledge is much easier. This was particularly true during the pandemic when people were not face to face and communicated through electronic devices. All of that communication is discoverable, meaning the other side gets to see it.
Now it’s time to talk about why the First Amendment creates a steep (but not insurmountable) hurdle for Dominion.
New York Times v. Sullivan in a nutshell
The dispute in New York Times v. Sullivan arose during the 1960s Civil Rights movement. The New York Times published an ad seeking contributions to defend Martin Luther King, Jr. Sullivan, a city Public Safety Commissioner in Alabama, understood that the ad was criticizing him and his subordinates. Hoping to put the pro-civil rights New York Times out of business, Sullivan sued the New York Times and a group of Black Alabama ministers for libel on the grounds that the ad contained a few factual inaccuracies and libeled him. (Sullivan was not mentioned by name in the ad.) He sued under Alabama libel law. A local jury in Alabama awarded Sullivan $500,000 in damages against The New York Times, a staggering amount for a newspaper to pay. The Alabama State Supreme Court affirmed the judgment.
The New York Times appealed to the US Supreme Court. The question was whether the Alabama libel law constitutionally infringed on the New York Times’ First Amendment’s freedom of speech and freedom of press protections.
In deciding the case, the Supreme Court set out a standard for deciding when a publication is liable for lies or inaccuracies:
When a statement concerns a public figure, it is not enough to show that it is false for the press to be liable. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity.
The standard is meant to be difficult. The idea is that it shouldn’t be too easy for public figures to put newspapers out of business.
Under the heightened standard, Sullivan lost. Imagine if Sullivan had won:
Segregationalists would have gone around putting any newspaper that “libeled” them out of business. If you criticized segregationalists, you could be sued.
Under the standard given in New York Times v. Sullivan (assuming Dominion is a public figure), Dominion must prove each of these elements:
Dominion filed a motion for summary judgment, which essentially says that the other party’s case is not only weak, but they have no evidence or no legal argument, so there is no point in going to trial. Obviously, it’s hard to get summary judgment in your favor because the other party doesn’t have a chance to go to trial, but it’s a helpful tool if you are the victim of a frivolous lawsuit and you want to get rid of it.
Here you go: More than you ever wanted to know about summary judgment: In the alternative, Dominion asks the court to rule that the statements are false and grant partial summary judgment because no reasonable juror could find otherwise. Even winning on partial summary judgment makes their task at trial easier. It also puts more pressure on Fox.)
Dominion’s Case Against Fox is Strong, Even Under These Heightened Standards
Given the communications between Fox news producers and personalities demonstrating that they knew they were spreading lies about Dominion, it looks like Dominion can prove the most difficult element: Fox knowingly or with reckless disregard for the truth told lies about Dominion that caused damage to Dominion and its executives and employees.
Dominion also offers Fox’s motive. (Showing the motive isn’t necessary, but it gives context for the lies.) Motive: When Fox truthfully called the election in Arizona for Biden, this triggered a backlash among its audience and the “network being rejected.” Rivals farther right, like Newsmax, took advantage to promote an “alternative universe” of election fraud.
Basically, Fox wanted to please its viewers and didn’t want to lose the popularity contest to Newsmax.
Aside: This demonstrates the dangers of click-based and popularity-based news dissemination, like reputational algorithms, which generally dictate how people get their news through social media.
Dominion’s motion lists the ways this case is different from most defamation cases.
Most defamation cases deal with one defamatory statement (or a few). Fox went on with these lies for months.
Another difference: As Fox was spewing lies, reliable third parties and government agencies (and courts) were debunking the lies in real time. Fox knew but continued.
Yet another difference: As Fox was telling its lies, Dominion made over 3,600 separate communications to FOX offering “verifiable information demonstrating” the falsity of Fox’s statements, but Fox continued.
Fox’s defense, offered here, is that news outlets have a First Amendment right to report the news, and that includes allegations by the sitting President of the United States and his surrogates alleged that the 2020 election was affected by fraud.
In other words, Fox claims to have “truthfully reported the president’s allegations.”
From the document: “According to Dominion, Fox News Network has a duty not to truthfully report the President’s allegations, but to suppress them or denounce them as false.”
Also, from the document: “Dominion is fundamentally mistaken. Freedom of speech and freedom of the press would be illusory if the prevailing side in a public controversy could sue the press for giving a forum to the other side.”
In other words, Fox’s position: There was a dispute. Fox reported the dispute. Dominion won. Now Dominion wants to sue the press for giving a forum to the losing side.
Fox says (basically): “We reported both sides. We gave air to Dominion’s side, also.”
This brings me to a propaganda technique called “noise,” widely used in Russia.
Noise is an effective technique: The propagandists do not suppress the truth. Instead, they elevate lies and place them alongside the truth, appearing to give both equal weight, but in fact, putting a thumb on the scale for the lies.
It’s the “both sides” argument: Both sides deserve to be told. But what if one side is a flat-out lie and the other is a verifiable truth?
Noise jams the signals. It confuses listeners and undermines factuality because people don’t know what to believe and come to believe that the truth is unknowable.
If enough people conclude that the truth is unknowable, democracy fails (democracy and rule of law require truth/autocracy rests on lies.)
The technique allows the propagandist to harness the powers of democratic institutions (like freedom of the press) to destroy truth and thereby destroy democracy.
Fox’s Anti-SLAPPP Counterclaim
Fox is bringing a counterclaim (this document is an amendment of their counterclaim) under New York’s anti-slappp statute.
As explained by the New York Times v. Sullivan case, a problem with defamation lawsuits is that they are often used to silence people. Consider this scenario (from the ACLU of NY):
A journalist publishes truthful, accurate information suggesting an elected official is unfit for office. The report damages the official’s public image, but instead of responding on the merits, the official—who is wealthy and powerful—sues the journalist for defamation and invasion of privacy. The official knows the journalist’s information is true and his lawsuit baseless, but that doesn’t matter, because he also knows the journalist doesn’t have the money or time to defend the suit and call the official’s bluff. The journalist knows this too, and so, faced with financial ruin simply for telling the truth, she retracts her report and issues a public apology to the official, who then withdraws a lawsuit he knows he would have lost if he’d gone forward. The journalist is wrongfully silenced and chastened, the public is denied valuable information, and the official remains convinced that the “truth” is whatever he can afford.
SLAPPS (Strategic Lawsuits Against Public Participation) are frivolous lawsuits intended to punish First Amended protected speech. Anti-Slapp laws (New York has one) prevent people from suing legitimate news sources and driving them out of business for reporting news that they don’t like.
You can bet the same people lying on Fox will sue outlets like the Washington Post for publishing unflattering truths.
Fox is claiming to be protected by New York’s anti-SLAPP laws.
Will this help Fox? I don’t think so. (Disclaimer: I am not an expert in the First Amendment or defamation law.)
Can lawsuits like Dominion’s lawsuit against Fox save democracy from disinformation (which is the primary way democracy is destroyed)?
Not by itself, no.
Democracy will be saved if enough people decide to hold on to the truth, with all of its complexity, and reject lies that make us feel good about our “team” and which affirm our previous biases.
Fox’s defense is all about what kind of country they want to live in.
II. The Big Tease: The Fulton County Special Grand Jury Report
First, the timeframe. (Timeframes are so helpful, don’t you think?)
January 2021: Fani Willis was sworn in as the new district attorney in Fulton County, Georgia.
February 10, 2021, Fani Willis announced plans to investigate the attempt of Trump and other Republicans to overturn the results of the election in Georgia.
January 20, 2022: Willis asked for a special grand jury
In Georgia, a special grand jury (SGJ) is an investigative tool. The SGJ hears testimony, views evidence, and makes charging recommendations, but the decisions about whether to bring charges, who to charge and what to charge is up to the DA.
April 29, 2022: The special grand jury was convened.
December 2022: The special grand jury concluded its work and wrote its report.
January 2023: A number of media entities requested the report to be made public. DA Willis asked the report not to be published because publication could undermine prosecutions and violate the due process rights of potential defendants.
She also said charging decisions are “imminent.”
She said that almost four weeks ago. A reporter recently asked her where the charging decisions were. After all, she had said, “imminent.” Willis said that she meant “legally imminent, not reporter imminent.”
So you can imagine what a lawyer means by “this will take a long time.” (One of my readers on Mastodon suggested that, in private practice, it means, “this will be expensive.”)
February 13: A judge ordered a redacted version of the report published on Thursday, February 16.
Oh, the anticipation! Would we learn whether the special grand jury recommended that Trump be charged with crimes? What about all the others who had a hand in trying to overturn the election in Georgia? Was the moment at last coming?
Journalists marked their calendars.
Then came clues that we might not see the good parts: Because of redactions, we would see only the introduction, the conclusion, and a section about whether any of the witnesses committed perjury. When a reporter asked Willis how she felt about the judge’s decision, she said she was happy and would not appeal.
February 16: The court opened at 8:30 ET. That was 5:30 where I live. I will admit that at 5:30 AM, I began hitting refresh to see if the report was out.
And, here it is. We learned that:
Nobody was named. See why I called it The Great Tease?
I updated my page comparing the various social media alternatives to Twitter. You can see it here.
A reader asked me this:
What do you think needs improvement in our justice system?
The law falls too heavily on vulnerable communities. Poverty is too often confused with child neglect. Mental illness should be treated in hospitals. We imprison too many people. A lot of states don’t do enough to provide good representation for people who cannot afford to pay. (The public defenders I worked with in California were excellent, but not all states are like California.)
Things have improved as women, and members of minority communities have moved into law enforcement and prosecution. Most states elect their prosecutors, so local elections are crucial to make sure we get good prosecutors.
I am in favor of more fairness procedures: California offers everyone convicted the right to appeal, including the right to a court-appointed appellate lawyer (that is what I did for more than 12 years). Everyone should have that right.
Procedures slow things down and add expenses to taxpayers. Lots of people resented the work I did because they thought I was filing appeals and thus creating delays for unworthy people. My clients were often women and members of vulnerable communities, so you can see why I bristle when people want to get rid of procedures for people they don’t like.
The solution is to redirect police and law enforcement resources to fighting white-collar crime and help people understand why the criminal justice system moves slowly.
The struggle to improve our democratic institutions is ongoing and will encounter continual pushback from those who dislike rules and procedures and prefer quick results. There was certainly something satisfying about putting the bad guys into stocks or pillories and throwing rotten fruit at him.
I think a lot of people miss the speed (and crudeness) of 18th-century justice, but moving backward would be a terrible idea.