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Opinion Are right-wing justices really sure they want to revisit defamation law?

The logo for Fox News is seen outside News Corporation headquarters in Manhattan on Feb. 26, 2021. (Jeenah Moon for The Washington Post)

In its war against mainstream media, the MAGA crowd has for years made noises about undoing the First Amendment protections established by the Supreme Court nearly 60 years ago for defendants in defamation lawsuits. Former president Donald Trump spoke about the need for “rewriting” defamation laws. His partisan allies on the Supreme Court, Justices Clarence Thomas and Neil M. Gorsuch, agreed.

They should be careful what they wish for. As the increasingly bitter litigation between Dominion Voting Systems and Fox News indicates, the right-wing media misinformation machine is a prime beneficiary of this legal protection.

In 1964, the Supreme Court held in New York Times v. Sullivan that a public figure who claims to have been libeled or defamed must prove the defendant acted with “actual malice” — that is, they made the defaming statement with reckless disregard for the truth. That high bar, right-wing critics claim, makes it too easy for “elite” and “left-wing” media to say mean things about Republican officials.

It is certainly true that this legal standard makes it more difficult for public figures to sue individuals and media outlets for defamation. But it’s not impossible. And in any case, it is right-wing outlets that have most benefited from these protections in recent years.

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Dominion Voting Systems, for example, has alleged that Fox News knowingly made false claims that the company participated in voter fraud. (Disclosure: I am an MSNBC contributor.) The case goes to the heart of the media empire of Rupert Murdoch, who is set to be deposed this week in the case. And as the New York Times recently reported, things aren’t going well for Fox News: “The judge, Eric M. Davis, has ruled in most instances in Dominion’s favor, allowing the voting company to expand the pool of potential evidence it can present to a jury to include text messages from the personal phones of Fox employees and the employment contracts of star hosts such as Sean Hannity and Tucker Carlson, along with those of Suzanne Scott, the chief executive of Fox News Media, and her top corporate managers.”

But Fox News has one thing going for it: New York Times v. Sullivan — at least for now. As the Times explains, Fox News takes solace in “the high burden of proof Dominion must reach to convince a jury that the network’s coverage of the 2020 election defamed it. Under the law, a jury has to conclude that Fox acted with ‘actual malice,’ meaning that people inside the network knew that what they were reporting was false but did so anyway, or that they recklessly disregarded information showing what they were reporting was wrong.”

It’s not just Fox News. Defamation suits have become a regular feature in fighting back against outrageous conspiracy theories, disinformation and plain-old lies from right-wing media. NPR reported in October that in addition to Dominion Voting Systems, Smartmatic, another election tech company, sued “media outlets and prominent Trump-world figures that spread allegedly defamatory claims about them in the 2020 election.” Georgia election workers Ruby Freeman and Wandrea Moss have filed similar suits against a media outlet that falsely claimed they were involved in fraud in their state. And Michigan software company Konnech sued “True the Vote,” the group behind the conspiratorial documentary “2,000 Mules,” for wrongly accusing the company of orchestrating “a red Chinese communist op run against the United States.”

If such cases reach the high court, how would the right-wing partisan justices react? Would they still want to trash decades of precedent when it’s their “side” facing potentially costly litigation?

Indeed, right-wing critics of New York Times v. Sullivan should keep in mind that the supposedly “elite” media outfits actually care about getting facts right and avoiding lawsuits. They employ lawyers to vet controversial stories and warn reporters and editors when they’ve gone over the line. They understand the need to issue corrections when they make errors. By contrast, many right-wing websites, talk-news loudmouths and billionaire owners of social media platforms seem to operate with the misunderstanding that they can say whatever they want no matter how false, outrageous and damaging. Frankly, Dominion’s lawsuit and others show that under existing case law, it’s not mainstream media that are most at risk.

New York Times v. Sullivan is an important protection for a robust, independent media. There’s little reason to reverse the decades of legal precedent behind it. If Thomas, Gorsuch and others realized the legal recourse that right-wing media would face without it in place, they might agree.

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