A Handsome Settlement in the Dominion‐​Fox News Case

Walter Olson

Those who seek to “open up” libel laws to make way for more defamation suits and higher damages sometimes talk as if the speech‐​protective constitutional standard announced by the Supreme Court in New York Times v. Sullivan makes it impossible for libel suits to prevail even when starkly meritorious — when egregious misconduct by the media has resulted in the circulation of gross falsehoods that cause severe damage to someone’s good name.

Today’s settlement, in which Fox has reportedly agreed to pay Dominion Voting Systems a handsome $787.5 million, should take the wind out of demands to make America’s libel law more like Great Britain’s. A previously obscure company took a plainly meritorious case to court, went up against one of the richest and most well‐​lawyered media defendants in the world, and not only won, but won big. That shows — as most lawyers knew all along — that while Sullivan may be speech‐​protective, it never did eviscerate common law rights to sue for defamation. Cato Institute adjunct scholar Andrew Grossman, writing with David B. Rifkin Jr., has argued that while Justice Brennan’s reasoning in Sullivan may be loose and policy‐​oriented, the rules at which he arrived are not that far from legal authority in many earlier cases, which had long employed formulas that in practice generated results not far from an “actual malice” standard. We should remember also that even under the media‐​friendly Sullivan standard, non‐​meritorious defamation claims are regularly used to intimidate or silence defendants.

The settlement also has implications for our national discussion of elections. Some dismiss claims of stolen or rigged elections, even when they extend to accusations that named persons have committed spectacular crimes and frauds as if they were unserious banter or mere differences of opinion. The Dominion settlement reminds us that many of the wild claims thrown around about the 2020 election are lies and fantasies, knowingly promoted by news executives and hosts afraid their audiences will go elsewhere. And while it is true that many lies and fantastic statements about elections do enjoy First Amendment protection, those that cross the line into defamation often don’t.

Healthy news coverage and opinion discourse about the American election system simply must do better than Fox did. There can be no effective movement for election integrity without the rigorous practice of factual integrity.