The costs of risks: Is Dominion v. Fox headed to settlement? — First Amendment News 372

Soon enough Delaware Superior Court Judge Eric M. Davis will rule on summary judgment motions in the $1.6 billion defamation case Dominion Voting Systems has brought against Fox News and its parent company. Judge Davis is also presiding over a similar defamation action brought by Smartmatic against Newsmax and has ruled that the matter can proceed to trial.

“Newsmax either knew its statements regarding Smartmatic’s role in the election-fraud narrative were false, or at least it had a high degree of awareness that they were probably false,” the judge declared. Meanwhile, a New York trial judge recently ruled in favor of Smartmatic in proceeding to trial regarding its $2.7 billion defamation action against Fox News, et al.

All of this raises the question: What are the respective risks in proceeding to trial, which is set to begin on April 17? 

The main lawyers 

• Dominion lawyers: Stephen Shackelford and Justin Nelson
• Fox News lawyer: Erin E. Murphy

The main risks

Risk #1 for Fox News and Newsmax — A skeptical judge

• Karl Baker and David Folkenflik, “Meet the judge deciding the $1.6 billion defamation case against Fox News,” NPR (Feb. 15)

While [Judge Eric Davis] notes the First Amendment protects reporters in order to guarantee a “robust and unintimidated press,” he also states the “First Amendment is not unlimited.” He said a neutral reportage principle does not protect a publisher who “deliberately distorts” statements to “launch a personal attack of [its] own on a public figure.”

• Jeremy Barr, “Judge sounds skeptical of some Fox arguments in Dominion lawsuit,” The Washington Post (March 21)

A Delaware judge threw cold water on some arguments made by a lawyer representing Fox News on Tuesday, less than a month before a trial is expected to begin in Dominion Voting Systems’ $1.6 billion defamation lawsuit against the network.

Risk #2 for Fox News and Newsmax — A bad start

Thus far, summary arguments either have not favored Newsmax or are unlikely to favor Fox News. A bad start is not a good omen going into trial. 

First Amendment media lawyer Lee Levine told The Los Angeles Times: “I have a hard time envisioning a scenario in which Fox News wins before a jury.”

“One just doesn’t see cases like this in defamation,” said Catherine Ross, a constitutional law professor at George Washington University who specializes in First Amendment issues. “Fox does not appear to have any plausible defense, particularly in light of what Dominion uncovered in discovery of real-time knowledge of falsity.”

Risk #3 for Fox News and Newsmax — Grueling examination

Do Newsmax and Fox News really want their owners and talk show hosts to take the stand and be subject to a grueling examination for all to see? Remember, a considerable amount of discovery has already been conducted, which may not give the defendants the kind of breathing room they need to prevail. Is Fox News actually willing to let Rupert and Lachlan Murdoch, Tucker Carlson, Sean Hannity, Lou Dobbs, Laura Ingraham, Maria Bartiromo, and others take the stand and answer questions under crossfire?

• Jeremy Barra, “Judge sounds skeptical of some Fox arguments in Dominion lawsuit,” The Washington Post (March 21)

Separately on Monday, Fox filed a motion arguing that top executives Rupert Murdoch and Lachlan Murdoch, as well as corporate board member and former House Speaker Paul D. Ryan, should not have to appear before a potential jury, citing “the hardships on those witnesses” and arguing that such live testimony “will add nothing other than media interest.”

Risk #4 for Fox News and Newsmax — Airing dirty laundry

Do Newsmax and Fox News want the public to know of the inner workings of their programming and how decisions are made? To make matters worse, Fox News producer Abby Grossberg recently sued the network in New York and Delaware for sex discrimination and also alleges that she was “coerced, intimidated, and misinformed” when a Fox News team prepared her to testify in the Dominion defamation case. According to the lawsuit, Grossberg claims that Fox News attorneys were “displeased” that she was being too “candid and forthcoming” during preparation sessions.

“[T]he problem is that by lifting the veil on the editorial decision-making process, we are now going to see all news organizations called into question going forward,” said professor Jane Kirtley, former executive director of the Reporters Committee for Freedom of the Press.

Assuming its relevance in a defamation case, Grossberg also alleges that “while working on [Tucker] Carlson’s show she endured an environment that ‘subjugates women based on vile sexist stereotypes, typecasts religious minorities and belittles their traditions, and demonstrates little to no regard for those suffering from mental illness.’” 

Furthermore, she charged that she had to tolerate a “misogynistic environment that permeates Fox News and fosters a toxic workplace where truth remains a fugitive while female workers are verbally violated on almost a daily basis by a poisonous and entrenched patriarchy” and that “members of Carlson’s staff made negative comments about Jewish people.”

Risk #5 for Fox and Newsmax — Conservative justices might not come to their defense

• Elie Mystal, “Fox News May Finally Pay the Price for Its Lies,” The Nation (March 9)

Should the case go to trial, and should Fox wind up on the losing end, the company would have another problem during the appeals process: A couple of the Supreme Court justices most likely to watch Fox News might be unwilling to save it. Even though the court is stacked with Republican appointees, the ideology of at least some of them does not help Fox in this case.

The reason is that these conservatives don’t want to strengthen NYT v. Sullivan, even if it would protect media organizations like Fox. They want to destroy it so that it’s easier for aggrieved rich people to sue the so-called “liberal” media for coverage they don’t like.

Risk #6 for All Media Outlets — Undermining Sullivan

• Amy Davidson Sorkin, “Where Dominion v. Fox Could Lead,” The New Yorker (March 27)

But a Fox victory has the potential to be profoundly disruptive, too, because it would suggest that almost nothing could meet the actual-malice test. Such an outcome could in its own way undermine Sullivan, by making it seem meaningless — an empty promise of recourse. That result could itself push the Court to an even broader reconsideration of press freedom.

Related

• Floyd Abrams, “‘Extremely threatening case’: First amendment atty on Dominion lawsuit against Fox News,” CNN (March 2023)

View video

Risk #7 for all media outlets — Putting reporters’ privileges in jeopardy

• Ashley Cullins, “Why First Amendment Experts Think Fox News Will Settle Its Dominion Dispute,” The Hollywood Reporter (March 20)

A courtroom showdown between Fox News and Dominion Voting Systems over the network’s coverage of the 2020 election is putting a spotlight on protections for journalists that typically insulate them against defamation claims, including the neutral report privilege and the actual malice standard. Both sides argue their loss would have a devastating impact. Fox News claims no outlet would be able to cover newsworthy allegations without fear of a lawsuit and Dominion says siding with the network would give broadcasters free rein to knowingly spread lies.

[ . . . ]

Media law specialist Daniel Novack isn’t so sure. “As a media lawyer, I’m worried about the neutral report privilege getting stomped on,” he says, pointing to an adage that bad facts create bad law. “It’s extremely irritating to watch Fox cloak itself in neutral reportage and First Amendment protections when this has the potential to destroy those protections because the facts are so bad.”

Related

• Aaron Blake, “Fox News-Dominion lawsuit: A timeline of the major revelations,” The New York Times (March 15)
• Dominick Mastrangelo, “Legal experts say Fox News on shaky legal ground in Dominion lawsuit,” The Hill (March 3)

Bipartisan senate group pushes for live broadcasting of SCOTUS proceedings

• Dennis Hetzel, “Bill would open U.S. Supreme Court proceedings to live broadcasting,” The Free Speech Center (March 20)

“The Cameras in the Courtroom Act,” was introduced last week by Senate Judiciary Chair Dick Durbin, D-Ill., and co-sponsored by Chuck Grassley, R-Iowa; Richard Blumenthal, D-Conn., and Amy Klobuchar, D-Minn. The two-sentence change in the law would require the Supreme Court to televise its hearings unless the justices voted that televising would put the due-process rights of a party before them at risk.

“Rulings made by Justices in our nation’s highest court impact the lives of every American, regardless of zip code,” Durbin said in a statement. “We see an ever-apparent interest for the American people to be able to witness the highest court’s proceedings.”

“Allowing cameras access to the Supreme Court would be a victory for transparency and would help the American people grow in confidence and understanding of the judiciary,” Grassley said.

Volokh files cert. petition in governmental blacklisting of gun-rights groups case 

• Eugene Volokh, “Cert. Petition on the First Amendment and Coercive Government Threats in NRA v. Vullo,” The Volokh Conspiracy (March 21)

William Brewer, Sarah Rogers & Noah Peters of Brewer Attorneys & Counselors and I filed a petition earlier this month asking the Supreme Court to review the Second Circuit decision in NRA v. Vullo; I think many of our readers will find it interesting (my apologies for the delay in passing it along).

I generally tend to agree with the NRA's ideological views, to a considerable extent, but I would have been glad to be engaged to argue a similar case on behalf of groups I disagreed with as well; it's a pretty important First Amendment question that can affect groups with all sorts of views. (Note that the ACLU filed an amicus brief on NRA's side in the District Court.) Here's our Introduction:

The Second Circuit’s opinion below gives state officials free rein to financially blacklist their political opponents—from gun-rights groups, to abortion-rights groups, to environmentalist groups, and beyond. It lets state officials “threaten[ ] regulated institutions with costly investigations, increased regulatory scrutiny and penalties should they fail to discontinue their arrangements with” a controversial speaker, on the ground that disfavored political speech poses a regulable “reputational risk.”

Related

• National Rifle Association of America v. Vullo

Melissa Etheridge appears on SPIN and FIRE’s video interview series, ‘Free Speech + Other Dirty Words’

Today, the artist-turned-activist sits down for an episode of “Free Speech + Other Dirty Words,” the provocative and engaging new video series created by legendary media brand SPIN and the Foundation for Individual Rights and Expression. The program weaves together the fundamental right of free speech with thought-provoking artist interviews and features iconic artists sharing their stories about freedom of speech, self-expression, and the barriers they crossed to avoid censorship.

View video

More in the news

• Eugene Volokh, “Ninth Circuit Strikes Down Ban on Landlords’ Inquiring About Prospective Tenants’ Criminal History, But . . .,” The Volokh Conspiracy (March 21)
• Lauren Sforza, “Judge rejects effort to combine E. Jean Carroll’s lawsuits against Trump into single trial,” The Hill (March 20)
• Zach Greenberg, “Delaware State rescinds NDAs, agrees to let students speak about campus safety,” FIRE (March 20)
• Susanna Granieri, “Federal Judge Dismisses Lawsuit of Tallahassee Police Review Member Ousted for ‘Abolish Police’ Sticker,” First Amendment Watch (March 17)
• Dennis Hetzel, “Mich. librarian threatened with prosecution unless LGBTQ novel removed,” Associated Press / The Free Speech Center (March 17)
• Susanna Granieri, “Twitter Barred from Disclosing ‘National Security’ Information Requests, Ninth Circuit Says,” First Amendment Watch (March 16)

2022-2023 SCOTUS term: Free expression and related cases

Review granted

• 303 Creative LLC v. Elenis (argued Dec. 5)
• Jack Daniel’s Properties, Inc. v. VIP Products LLC (argued March 22)
• United States v. Hansen (to be argued, March 27) (Volokh commentary here)
• Counterman v. Colorado (to be argued, April 19)

Pending petitions

• National Rifle Association of America v. Vullo
• Mobilize the Message v. Bonta
• Vidal v. Elster
• O’Connor-Ratcliff v. Garnier
• U.S. v. Hernandez-Calvillo
• Price v. Garland
• Moody v. NetChoice, LLC
• NetChoice, LLC v. Moody
• Florida v. NetChoice
• Klein v. Oregon Bureau of Labor and Industries

State action

• O’Connor-Ratcliff v. Garnier 

Qualified immunity

• Novak v. City of Parma (cert. denied)

Immunity under Foreign Sovereign Immunities Act

• NSO Group Technologies Limited v. WhatsApp Inc. (cert. denied)

Liability Anti-Terrorism Act

• Twitter v. Taamneh (argued Feb. 22)

Section 230 immunity

• Gonzalez v. Google (argued Feb. 21)

Review denied

• Keister v. Bell
• Morgan v. Arizona
• Novak v. City of Parma
• Soto v. Texas
• Moore v. Texas
• Chen v. Texas
• Barton v. Texas
• Arkansas Times v. Waldrip
• My Pillow v. U.S. Dominion (news story)
• Kowall v. Benson
• Tofsrud v. Spokane Police Department
• Swanson v. Griffin County

Previous FAN

FAN 371: “Heckler’s veto in raucous play at Stanford Law School, federal judge’s speech shouted down”

This article is part of First Amendment News, an editorially independent publication edited by professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of professor Collins.