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Fox News Can Be Held Accountable While Protecting Free Speech

At the center of Dominion Voting Systems’ lawsuit against Fox News and Fox Corporation is a deceptively subtle First Amendment question: How may a news outlet speak about false claims made by a public figure?

A Delaware judge will soon decide whether to grant summary judgment to Fox or Dominion, instead of sending the case to a jury. But that won’t be the end of the case. Unless the parties reach a settlement, the case could eventually wend its way to the US Supreme Court, where the justices would have to confront this core question.

The facts of the case have been widely reported, and the enormous number of statements by Fox executives and employees has been usefully summarized by the Washington Post. Among the revelations: Fox personalities from CEO Rupert Murdoch to TV host Tucker Carlson privately acknowledged that President Donald Trump was lying when he claimed fraud cost him re-election.

Legally, the two sides mostly agree on the facts. Hence the outcome is ultimately going to hinge on how the courts apply defamation law. The basic background is the famous 1964 case New York Times v. Sullivan, where the Supreme Court held that a public figure suing for libel must prove that the defamatory statements were made with knowledge of their falsehood or with reckless disregard for their falsehood. Although Justices Clarence Thomas and Neil Gorsuch have made noises about softening the Sullivan standard, it remains good law.

Ordinarily, it doesn’t matter whether the published libel came from someone employed by the media outlet or someone else. In the Sullivan case, for example, the defamatory statements appeared in an advertisement published in the New York Times. In theory, therefore, Fox could be held liable even for statements made on the air by guests such as Rudy Giuliani, who repeatedly made false and defamatory statements about Dominion on Fox shows.

That sounds bad for Fox. And to be sure, a highly formalistic application of existing libel law would probably lead to a win for Dominion.

Where things start to get tricky is where a news outlet chooses to report on public statements by public figures that it knows to be false. That wasn’t directly addressed by the Sullivan case.

On one highly formal reading of existing law, Fox could be held liable simply for choosing to air statements by Trump’s lawyers and supporters that Fox knew were false. Technically, that would be considered publishing a libel.

But that cannot be the law, at least not if we care about the First Amendment. Many TV channels carried video of Trump’s lawyers repeating election fraud claims. Technically, that entailed publishing those claims. It makes no sense to suggest that those outlets are liable for defamation. If they are, then the public wouldn’t even be able to learn about Trump’s election denial, or the threat it poses to democracy.

So what’s the legal difference between Fox and, say, CNN? One possibility, which Dominion seems to embrace, is that it was fine for news outlets to report what Trump and his supporters were saying, provided they explained that the claims were false. Essentially, the idea is that I am not libeling you if I repeat a defamatory statement and then quickly add that the statement is not true.

The difficulty with this logic is that it would require the media to say which side of any factual dispute it believes to be objectively correct – something that might not always be possible or desirable. It could  open the door to a barrage of lawsuits against media outlets.

An alternative, urged by Fox, is for the courts to allow a media outlet to defend itself affirmatively against the charge of libel by saying it was engaged in “neutral reportage.” The Supreme Court has never officially adopted this doctrine, and its status in state courts is a bit murky. If adopted, it would protect media outlets that quote election denial, provided they reported the information neutrally.

Neutrality, of course, may be in the eye of the beholder. Does neutral reportage require covering both points of view? What if the outlet devoted more time to the false view, as Fox certainly did? These are conceptually challenging questions – ones that courts might not be very good at answering.

Dominion says that Fox cannot rely on the neutral reportage theory because its on-air personalities didn’t only report the election denial, they endorsed it. That seems to have been true in a number of instances.

Fox rejoins, however, that its on-air personalities are opinion journalists and analysts, not reporters. Under the First Amendment, opinion gets nearly absolute protection. The case might then turn on whether the opinion journalists were making statements of fact. In practice, it can be hard to disentangle opinion statements from fact statements. Does everything labeled “opinion” count as an opinion? Or can there be factual statements embedded in opinion journalism?

That leads us to Fox’s most aggressive First Amendment argument: that it should get immunity from libel laws so long as it was discussing “newsworthy” topics. Given that the sitting president of the United States was asserting election fraud, the subject was certainly newsworthy.

Taken to its logical extreme, however, a newsworthiness exception to libel would basically let the media say whatever it wanted about public figures, true or not. Public figures would never win another libel case. It seems unlikely that the Supreme Court would go so far beyond the Sullivan rule, which makes it hard but not impossible for public figures to sue successfully.

So what should the new rule be? Under the logic of the Sullivan decision, the best result might be to require a news outlet that knows a statement is false to contextualize it.

The outlet need not say it believes the statement is false; just that it is reporting what someone else thinks. If the statement is made by an employee of the outlet, then the outlet should make it clear that the statement reflects the employee’s opinion, not a fact. If this approach were adopted, it would not matter how many times the outlet repeated or reported the false claims, so long as they were presented as someone else’s factual claims or as opinion.

Requiring this sort of context does place some burden on the outlet’s speech. The corresponding benefit, however, is to preserve the core idea behind the law of libel: that no one, not even the media speaking about a public figure on a newsworthy topic, may knowingly repeat defamatory lies as statements of fact.

If we abandon that basic idea, we will launch public discourse into a fully fact-free zone. Donald Trump has already done his best to put us there. The courts and the Constitution should not give him an after-the-fact victory.

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”

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