False Speech within the Law’s Dominion: Defamation through a First Amendment Lens

March 17, 2023

By Ryan Moore, Vol. 21 Staff Writer

Introduction

The 2020 presidential election provided anything but the comfortable rhythm long-time viewers of election night coverage have come to expect. Americans went to bed on election night without a declared victor, mostly due to the prevalence of mail-in ballots in the midst of the COVID-19 pandemic. During this uncertain period and in the weeks following the announcement of Biden as the winner, Republican leaders and news outlets, including President Trump himself, fabricated claims of electoral fraud in an effort to overturn the election. The widespread false information gave rise to several lawsuits for defamation, tasking courts with an important free speech question: when can a news outlet be held legally liable for spreading false information?

Who’s Involved?

Many of the false claims revolved around Dominion Voting Systems, a Canadian company whose voting software was used in some vital swing states during the 2020 election. President Trump claimed that Dominion was part of a massive conspiracy to steal the election from him and that the company’s software had deleted millions of Trump votes. Trump’s legal team, headed by Rudy Giuliani and Sidney Powell, propagated the claims on right-leaning news networks.

Fox News was one such network. Several show hosts on Fox News invited Powell and Giuliani to speak on election fraud and did not combat their false claims against Dominion Voting. Fox News hosts, including Jeanine Pirro and Lou Dobbs, also made false election claims against Dominion. Dobbs, for instance, described the alleged Dominion conspiracy as a “cyber Pearl Harbor.”

In 2021, Dominion filed a number of defamation lawsuits, including one against Fox News in Delaware court. Dominion alleged that it had suffered “devastating economic harm” due to Fox’s false stories about election fraud.

So, What’s the Standard for Defamation?

Lies, in general, are protected speech under the First Amendment’s free speech clause. However, defamation has long been recognized as a claim victims may bring against the person or organization who spoke falsely about them. Under its traditional definition, defamation requires that the defendant make a false statement that injures the plaintiff’s reputation. The standard for defamation used to be quite simple: if the claim was false and the plaintiff’s reputation was injured, the plaintiff could win the case and recover damages.

New York Times v. Sullivan, a landmark Supreme Court case from 1964, altered the traditional defamation standard to comply with free speech protections under the First Amendment. Under Sullivan, there are two critical inquiries: (1) is the plaintiff a public official or figure? and (2) was the false statement about a matter of public concern? On issues of public concern in which the plaintiff is a public figure, the plaintiff must show that the defendant knew the statement in question was false or acted with reckless disregard to its accuracy. On issues of public concern in which the plaintiff is a private figure, the plaintiff need only show that the defendant acted with negligence. Justice Brennan said in Sullivan that such a restriction on defamation for public figures on matters of public concern would “assure unfettered interchange of ideas.”

Since information on the results of a national election is perhaps the epitome of a matter of public concern, the ease with which Dominion can win this lawsuit should rest largely on whether the company is treated as a public or private figure.

The Supreme Court has indicated that a particular plaintiff may be treated as a public figure even if the plaintiff has gained publicity through only a single issue or event, but only if that event relates to their participation in the controversy that led to the defamation. In Gertz v. Robert Welch, Inc., the Supreme Court articulated its definition of this type of limited-purpose public figure in cases relating to matters of public concern. The Court said that the court could treat a plaintiff as a public figure where that plaintiff “plainly thrust himself into the vortex of this public issue . . . .”

Gertz and other Supreme Court decisions laying out the First Amendment ground rules for defamation cases all deal with human plaintiffs. The Supreme Court has stressed the importance of the “protection of private personality” in rationalizing its private-public distinction, somewhat clouding guidance for lower courts when dealing with corporate plaintiffs. Consequently, lower courts have taken different approaches when dealing with corporations in defamation cases.

Two major corporate defamation paths have been forged. Some jurisdictions have used the Gertz test exactly, while others have held that corporate plaintiffs automatically qualify as public figures for the sake of defamation analysis where their business activities “reflect[] a special magnitude of public dependence and involvement.” The latter category of jurisdictions find that the privacy concerns expressed by the Supreme Court are not as prevalent with a corporate plaintiff.

Which Test Will be Used? It Ultimately Shouldn’t Matter

Unsurprisingly, in its complaint, Dominion Voting Systems defined itself as a “little-known voting machine company,” requesting that the court treat it as a private figure. If the Delaware court were to accept Dominion Voting Systems as a private figure, Dominion would need to show only that Fox News was negligent in airing the defamatory statements.

It is unlikely, however, that the court will accept Dominion as a private figure. Dominion has become the company of choice for voting systems in twenty-eight states. Elections are of utmost public importance, and Dominion has opted, by way of its business deals with states in the U.S., to thrust itself into the “vortex” of vote counting under the Gertz test. If the Delaware court decides to use the test determining whether Dominion’s business activities “reflect a special magnitude of public dependence and involvement,” it is even more likely that Dominion will be deemed a public figure. Dominion’s business is election machines, meaning that its products are depended upon by millions of voters every cycle. Dominion recognizes this reality in its complaint against Fox, as it frequently addresses the “knowledge of falsity or reckless disregard for the truth” standard.

Who’s Going to Win?

If the court decides that Dominion Voting Systems is a public figure, it will be held to the heightened standard of showing that Fox News broadcast false statements with knowledge of their falsity or reckless disregard for their accuracy. This is certainly a taller hurdle than the “negligence” standard for private figures, but it is one Dominion may still be able to overcome.

News outlets are not immune from defamation suits. At least since the 1950s, television broadcasts have been subject to defamation lawsuits, with some cases coming from talk shows much like the ones Fox News broadcasts. Given this, Dominion should be able to show that Fox News made defamatory statements at least with reckless disregard to their accuracy.

News outlets across the country, including Fox News itself, called the election for Biden on November 7, 2020, four days after election day. Election officials consistently affirmed the validity of the electoral results in the weeks following their announcement. Yet, throughout November and into January of 2021, Fox News’s primetime personalities continued to spread false claims about election fraud. By way of example, on November 21, 2020, Jeanine Pirro stated that Dominion was an “organized criminal enterprise started in Venezuela with Cuban money” and that the company “flipped votes.”

The Delaware judge in charge of the case declined to dismiss it in December, so the case will proceed during the coming months, and we will have to wait and see what the courts decide.