In the wake of Fox News’ $787.5 million payout to Dominion Voting Systems — to avoid subjecting that cable network’s stars and corporate executives to embarrassing courtroom testimony — several commentators have expressed concern that the huge sum will spawn a rash of libel claims against other news outlets who provided a platform to the purveyors of lies about the 2020 election.
After all, under the so-called “republication doctrine” of libel law, any broadcaster or repeater of such blatant falsehoods stands in the shoes of the original defamer, and must defend the substance of those statements. So, why wouldn’t the New York Times, Washington Post, CNN, AP, and countless others be on the same footing — subject to massive financial exposure — as the Fox News Channel?
The short answer is that they are not on the same footing. Fox — and a couple of other “conservative” cable channels — stand alone. Indeed, not a single legitimate news outlet, nor any press freedom advocacy organization, has risen to defend Fox’s so-called “reporting” on the real “fake news” that the 2020 presidential election was beset by massive voter fraud, widespread “irregularities,” and “rigged” voting machines that “flipped votes” from Trump to Biden. You know, the so-called “steal” that prompted the January 6, 2021, violent attack on the U.S. Capitol and our democracy.
Is that unusual? Yes, it is. Practically any time a member of the legitimate news media finds itself in the crosshairs of a legal battle, other journalists and press freedom advocacy organizations rally in support of its challenged conduct. After all, a weakening of the law that protects one news outlet inevitably affects all others. So why hasn’t any mainstream news organization or institutional defender of press freedom come to Fox’s defense?
It’s because what Fox News did, in the aftermath of the 2020 election, was indefensible under the legal regime that protects everyone else. As we’ve all learned (and as Sarah Ferguson of the Australian Broadcasting Corporation masterfully documented back in August of 2021 — track down and watch the 2-part documentary, “Fox and the Big Lie”), after the 2020 election, Rupert and Lachlan Murdoch, along with the CEO of Fox News, consciously decided to abandon the truth and instead have its on-air “talent” trumpet and endorse the outright lies spouted by Trump, Rudy Giuliani, Sydney Powell and Mike Lindell as invited guests on its programs.
Why did they do it? Money. Fox was hemorrhaging viewers to the even more conservative and staunch Trump-supporting cable channels OANN and Newsmax (who also will be held to account for knowingly spouting the same falsehoods). So, rather than do as every other legitimate news organization did — tell their readers and viewers that these prevaricators were making “baseless” claims, “without any evidence” — Fox’s hosts gave credence to those falsehoods, repeating them as established facts, not deranged delusions of partisans that numerous Republican election officials, and the federal government itself, had categorically debunked.
So, the New York Times, Washington Post, CNN, this paper, and every other legitimate news organization have nothing to fear from holding Fox, OANN, and Newsmax accountable for promulgating knowing falsehoods. Such speech enjoys no protection under the hallowed New York Times v. Sullivan “actual malice” standard. The legitimate news outlets, in sharp contrast, dutifully informed their readers and viewers that what those public figures were saying was false. There was no evidence, no facts, to support their “baseless” allegations. Thus, the overall “gist or sting” of those news outlets’ reports, taken as a whole, were not defamatory of Dominion or Smartmatic. And that’s why those voting machine companies have not sued, and will not sue, any member of the legitimate news media. Because they know they cannot win.
But Fox and the other lie-embracing propaganda outlets are different. They stand together, apart from the so-called “mainstream,” legitimate news media. And their falling together, under the law, will not diminish “the freedom of the press” one iota.
Steve Zansberg is a First Amendment and media lawyer in Denver, Colorado.
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