February 23, 2023 01:30 PM UTC

Legal Experts: Dominion Defamation Suit Should Succeed

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• by: Colorado Pols

[mantra-pullquote align=”right” textalign=”left” width=”50%”]“I think that Dominion both will and should prevail.”

     — Laurence Tribe, former Harvard law professor[/mantra-pullquote]

We wrote last week about internal communications made public as a result of a defamation lawsuit filed by Denver-based Dominion Voting Systems against Fox News Corporation.

One of the key points in any successful defamation claim is proving that there was an intention to defame the victim. Dominion has long claimed that Fox News deliberately amplified false claims of voter fraud and provided a platform for guests to make similar accusations; internal communications from some of the top names at Fox News seems to make clear that the network knew damn well that it was promoting nonsense claims of voter fraud in order to appease its rabid right-wing audience.

As The Washington Post reports today, legal experts were stunned by the extent of evidence against Fox News and are now of the opinion that Dominion will ultimately prevail in its defamation lawsuit:

“You just don’t often get smoking-gun evidence of a news organization saying internally, ‘We know this is patently false, but let’s forge ahead with it,’” said RonNell Andersen Jones, a University of Utah professor who specializes in media law. [Pols emphasis]

Under New York Times v. Sullivan, a 1964 Supreme Court ruling that has guided libel and defamation claims for nearly 60 years, a plaintiff like Dominion must show that a defendant like Fox published false statements with “actual malice” — meaning that it was done “with knowledge that it was false or with reckless disregard of whether it was false or not.”

Based on the messages revealed last week, “I think that Dominion both will and should prevail,” said Laurence Tribe, a former Harvard law professor. “If anything, the landmark this case is likely to establish will help show that New York Times v. Sullivan” is not an impossible legal hurdle to clear, as some critics have claimed. [Pols emphasis]

“While it’s true that the Supreme Court [in Sullivan] has set a high bar for plaintiffs, a high bar doesn’t mean no bar,” said Sonja R. West, a First Amendment scholar at the University of Georgia law school “What we’re seeing in this case looks an awful lot like the exception that proves the rule. The First Amendment often protects speakers who make innocent or even negligent mistakes, but this does not mean they can knowingly tell lies that damage the reputation of others.”

Even if Dominion does succeed in its defamation suit, there are some questions about how much Fox News Corporation will ultimately be required to pay up (or whether it will attempt to play a corporate shell game that includes some form of bankruptcy).

Regardless of the financial impacts, a victory by Dominion would be a big win for things like “truth” and “facts” in the overall media landscape. That’s the kind of outcome in which everyone wins.