You’re likely to be hearing a lot more about the landmark Supreme Court decision New York Times Co. v. Sullivan in the coming weeks.
This is the seminal case upon which our nation’s libel law has been adjudicated since 1964.
The case involved an appeal by the Times against L.B. Sullivan, a commissioner of the city of Montgomery, Alabama, who had sued the Times and “four individual petitioners, who are Negros and Alabama clergymen,” based on the claim that an ad taken out in the Times by the defendants made false accusations and that he was entitled to libel damages.
The Alabama Supreme Court had ruled in Sullivan’s favor. The U.S. Supreme Court, however, overruled the state’s decision on the grounds that “mere negligence or carelessness is not evidence of actual malice or malice in fact,” and determined that the First Amendment requires the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate.
In recent years, conservatives, including former President Donald Trump have railed against the Times v. Sullivan decision, claiming it grants media outlets permission to publish false narratives under the protection of the defendant having to prove evidence of malice or intention. Here’s Trump in 2016: “I want to open up our libel laws so when the New York Times and Washington Post write purposely negative and horrible and false articles, we can sue them and win lots of money.”
In 2019, Justice Clarence Thomas further stirred the kettle, writing: “New York Times v. Sullivan and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”
And just last week, not to be outdone by anyone in his ongoing choke-the-woke agenda, Florida Governor Ron DeSantis upped his attacks on the “leftist mainstream media,” saying he would push to loosen Florida’s libel laws: “I’d say these companies are probably the leading purveyors of disinformation in our entire society right now.”
Here’s some free advice for these folks: Be careful what you wish for. Libel reform cuts both ways, as Fox News is now finding out the hard way.
The voting machine company, Dominion, is suing Fox for $1.6 billion for promoting fabrications about it regarding the 2020 presidential election. The case will likely turn on the court’s interpretation of Times v. Sullivan and whether Fox knew its hosts’ promotion of lies by election-deniers such as Sidney Powell, Rudy Giuliani, and others were false.
Turns out, they did. Shocker, I know. In a court document released last week, Dominion claimed that “literally dozens of people with editorial responsibility — from the top of the organization to the producers of specific shows to the hosts themselves — acted with actual malice.” And the company had receipts, dozens of pages of them.
Here’s a sample email exchange between hosts Tucker Carlson and Laura Ingraham:
Carlson: “Sidney Powell is lying by the way. I caught her. It’s insane.”
Ingraham “Sidney is a complete nut. No one will work with her. Ditto with Rudy.”
There are dozens more examples of internal communications between Fox News hosts, including Trump acolyte Sean Hannity, disparaging the false claims against Dominion. Here are a few other samples of various hosts’ descriptors of their nightly guests: “Ludicrous.” “Off the rails.” “Fucking lunatics.” “Complete bullshit.”
Yet, the election-deniers were put on the air night after night and allowed to pump their duplicitous bilge without pushback. Most troubling for Fox is that the network’s knowing duplicity extended all the way to the top. Dominion’s filing includes records of Fox News chairman Rupert Murdoch calling the voter-fraud claims “really crazy stuff,” among other things.
But the “really crazy stuff” went on the air in prime time for weeks, duping millions of Fox News viewers into believing the “Big Lie” that Dominion’s machines had altered millions of votes and helped steal the 2020 election for Joe Biden.
“Fox knew,” the Dominion filing declares. “From the top down, Fox knew.”
Fox News responded: “The core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan.”
Good luck with that. And you might want to give ol’ Clarence a call.