Given that harm, it’s easy to understand why defenders of democracy might be cheering the billion-dollar lawsuits filed against Fox by two voting-technology companies, Smartmatic and Dominion Voting Systems.
The two companies are seeking damages of more than $4 billion from Fox, claiming that their corporate reputations and employees’ well-being were deeply harmed by lies that their equipment was used to manipulate the vote. (Or, as one particularly wacky scenario had it, that Hugo Chávez, the former president of Venezuela, had been involved in creating Smartmatic’s technology so that votes could be secretly manipulated.)
In some ways, it’s a relief to see someone hold Fox to account, especially since nothing else seems able to restrain right-wing media outlets from spreading disinformation. Fox, calling the suits meritless, has said it is proud of its election coverage.
The suits (along with signals that more are coming) have had an apparent effect: Fox Business abruptly ended Lou Dobbs’s show, without saying why; unusual corrective segments have aired; the election-lie story has simmered down somewhat.
But for those who care about the reality-based news media, there’s a downside. And nobody is thinking about that more intently than the people at a small investigative California newsroom called Reveal, which is run by the nonprofit Center for Investigative Reporting.
“These defamation suits can decimate the legitimate press,” said D. Victoria Baranetsky, general counsel at Reveal.
She told me in an interview this week that Reveal could have been driven out of business altogether by the costs associated with a suit filed in 2016 by the subjects of one investigation but that significant pro bono help from two large law firms rescued them from that fate.
Reveal was hit by a defamation case after its two-year investigation tied a charity, Planet Aid, to a cult and raised serious questions about Planet Aid’s spending. It’s the kind of watchdog work that investigative journalism is supposed to do.
But Planet Aid sued for $25 million — twice the annual budget of the Center for Investigative Reporting.
A judge finally threw the case against Reveal out of court last week. But it took four years and millions of dollars to make that happen. And, in its wake, the defamation-lawsuit playbook remains. It’s an existential threat for some media companies.
“Other news organizations might look at this lawsuit and decide that reporting on powerful or deep-pocketed organizations isn’t worth the risk,” Baranetsky wrote in an op-ed in the Columbia Journalism Review, co-written with Alexandra Gutierrez, a First Amendment fellow at the Center for Investigative Reporting.
They added this caution: “For every Smartmatic case lauded as a promising defense against disinformation, there are also outcomes like ours.”
It’s happening in an atmosphere in which long-standing media rights are under siege in other troubling ways.
Just weeks ago, federal appeals court judge Laurence Silberman sent chills down the spines of free-press advocates when he issued a harsh dissenting opinion in a defamation case decided by the D.C. Circuit.
Silberman, one of the most prominent and influential conservative judges in the country, attacked Times v. Sullivan — the 1964 case that solidified press freedom in the United States by establishing a high standard for public officials to sue over libel and defamation. In it, the Supreme Court said that even if a news report about a public figure was false, it couldn’t be the basis for a libel judgment unless it showed “reckless disregard” for the truth.
The ruling reflects the principle that news organizations, staffed by fallible human beings, will sometimes get things wrong and must be allowed to do their jobs with some protections from punishment.
These long-standing protections are what Donald Trump railed against when he promised, years ago, to “open up” the libel laws and get lots of money from media companies for stories he didn’t like.
Baranetsky, Reveal’s counsel, told me that media companies are especially wary right now — worried about conservative judges who may echo Silberman’s views about the media, worried about the blueprint all too available for suing journalists into extinction.
“There’s a high-wire balancing act going on,” she said. If defamation suits, even valid ones, are successful, long-standing First Amendment protections could be weakened; aggrieved subjects of news stories, especially those with deep pockets, may be encouraged to go after media companies of all kinds, not just hyperpartisan ones.
And long, expensive court battles could put them out of business.
It would be comforting to think that defamation suits won’t ward off good journalism while seeking to punish the spreading of irresponsible lies.
Comforting — but far from a sure thing.
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