By Alison Frankel
(Reuters) - (The opinions expressed here are those of the author, a columnist for Reuters.)
In the epic $1.6 billion defamation fight between Dominion Voting Systems Corp and Fox Corp, each side insists that it is battling for good journalism and the 1st Amendment.
For Dominion — which says it has reams of documentary evidence and testimony that Fox journalists and officials knew the network was airing false claims about Dominion in the aftermath of the 2020 election – the 1st Amendment demands respect for what the company called a “simple point” in a brief filed last week in Delaware Superior Court: “News networks should not knowingly broadcast lies.”
Fox and subsidiary Fox News Network LLC deny that Fox hosts did any such thing. But the network is also pressing a broad, bold argument, in briefs filed last week and earlier last month, that Dominion’s entire case must fail as a matter of law.
The 1st Amendment, Fox contends, shields news organizations from liability for their reporting on public figures’ allegations about matters of public interest, even if the allegation turn out to be untrue.
This “neutral reportage” doctrine, Fox argues, allows news organizations to report on important controversies as they play out. Even if journalists or other people in the organization have doubts about newsworthy allegations by notable public figures, Fox said, media companies cannot be liable for reporting or commenting on the accusations, as long as journalists make clear that the allegations are unproven.
Otherwise, news outlets might be scared away from real-time reporting on crucially important issues, Fox said, citing examples such as claims that Barack Obama was not born in the U.S. and that Bill and Hillary Clinton were involved in the death of deputy White House counsel Vince Foster.
“That is all part of the truth-seeking function protected by the First Amendment, which values public debate about newsworthy allegations and remedies speech with more speech, not billion-dollar defamation suits,” argued Fox’s lawyers from Clement & Murphy and Winston & Strawn.
Dominion, which is represented by Susman Godfrey and Clare Locke, has countered that Fox isn’t entitled to win even under its own theory, since Fox hosts did not merely report on allegations about Dominion voting machines but instead "endorsed" assertions of election fraud. Fox Corp chair Rupert Murdoch acknowledged as much in a deposition, Dominion said. (As Reuters has reported, Dominion claims that in order to boost ratings and stave off far-right competitors, Fox amplified false theories that Dominion voting machines were rigged to swing the 2020 election to Joe Biden.)
Fox's theory is also wrong, according to Dominion, as a matter of precedent and 1st Amendment principles. “What Fox is asking for is a blank check, to publish any ‘newsworthy’ allegations (which would include any allegations at all against any public figure), even if Fox knows or recklessly disregards that they are false,” Dominion warned.
News organizations are already protected by U.S. Supreme Court precedent that requires defamation plaintiffs to prove that journalists knew their reporting was false or recklessly disregarded red flags, Dominion said. Fox’s “neutral reportage” theory, it argued, would upend that careful balance.
In an email statement, Fox said Dominion has an “astounding” view of the law. “According to Dominion, the press is liable for reporting newsworthy allegations ... even if the press makes clear that the allegations are unproven and that many people contest them,” Fox said.
A Dominion spokesperson declined to provide a statement.
Both sides have told Delaware Superior Court Judge Eric Davis that the journalism implications of Fox’s argument are potentially vast. In that context, it’s worth taking a look at the legal underpinning of “neutral reportage” doctrine.
Notably, Fox has so far not had much success with its theory. In the Delaware litigation, Davis expressed skepticism about Fox’s assertion of broad protection for reporting on newsworthy allegations when he refused to dismiss Dominion’s case in 2021. A federal judge in Manhattan cited a Fox News host’s “impassioned advocacy” in a September 2022 opinion rejecting Fox’s neutral reportage arguments in another defamation case stemming from 2020 election fraud reports. And last month, an intermediate New York appellate court affirmed that Fox must face defamation claims by voting technology company Smartmatic USA Corp, despite Fox arguments that it is entitled to immunity for reporting on newsworthy allegations.
None of those decisions, though, was in the context of a summary judgment motion, in which both sides rely on evidence obtained in discovery rather than mere assertions in early pleadings. The Delaware Dominion case will be the most consequential test to date of Fox’s theory.
Fox’s argument rests primarily on a 1977 opinion in which the 2nd U.S. Circuit Court of Appeals cleared The New York Times of liability for reporting allegations by the National Audubon Society that three scientists were “paid liars.” The appeals court said that when a credible group like Audubon makes serious allegations against public figures, “the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity.”
Fox also relies on a 1995 decision from New York’s highest court in a case arising from an allegedly defamatory op-ed in the New York Times. (New York law governs the Dominion defamation suit, even though it’s being tried in Delaware.) Fox contends that the 1995 opinion establishes a defining contextual line: If accusations are presented as allegations, not fact, they are not actionable.
Numerous other state and federal courts, according to Fox, have similarly held that news organizations have a 1st Amendment right to report on controversial allegations against prominent figures in the interest of robust public debate.
But Dominion argued Fox is either misstating the precedent it cites or, in the case of New York precedent, ignoring state court opinions that rejected the reasoning of the Audubon ruling. As Dominion noted in its brief last week, Delaware judge Davis cited those New York state court rulings when he said in 2021 that he “questions whether Fox can raise neutral reportage doctrine or analogous newsworthiness privilege as an absolute defense to liability.”
Davis will hear oral arguments on both sides’ summary judgment motions on March 21. Fox is likely to push hard for neutral reporting immunity at that hearing.
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(Reporting By Alison Frankel; editing by Leigh Jones)