By Camryn Fujita (SC’21)
Former President Donald Trump and his allies have faced intense legal fallout since the certification of the 2020 election results and the January 6th storming of the U.S. Capitol. Last week, attorneys for Fox News petitioned a New York state court to drop the defamation suit brought against the network by voting technology company, Smartmatic.
Smartmatic, the company who supplied electronic voting systems in the 2020 election in Los Angeles County, filed suit against Fox News earlier this month for alleged defamation and disparagement. Smartmatic is seeking $2.7 billion in compensatory damages and additional punitive damages after several Fox News hosts repeated “false accusations and disinformation” that Smartmatic had “rigged” and “fixed” their voting technology against Trump. The suit specifically names Lou Dobbs, Jeanine Pirro and Maria Bartiromo and the interviews they hosted with Trump’s lawyers, Rudy Giuliani and Sidney Powell. Smartmatic accused the Fox hosts of deliberately spreading Trump’s conspiracy theories about electronic voting systems, which furthered his false narrative of a “stolen” election, as a business move intended to regain Trump’s approval and regain viewers lost to conservative news competitors, Newsmax and One America News Network (OANN).
Fox’s defense heavily relies on the media’s First Amendment right to report on debates of public importance, under which courts have historically ruled on the side of protecting journalists and the press. Fox’s attorney, Paul Clement, drew on this favor by calling the network’s reporting on the election “unquestionably newsworthy information that would help foster ‘uninhibited, robust, and wide-open’ debate on rapidly developing events of unparalleled importance.” However, some legal experts believe that Smartmatic and its competitor, Dominion, have the basis for presenting a strong case in court, which would be financially dangerous to Fox News if the companies won. The case could rely, in part, on whether the court finds Fox responsible for what its guests say on air, for the content of its broadcasts, and whether Smartmatic would be considered a “public figure.” Under tort law, if the plaintiff is considered a “public figure,” it raises the burden of proof under which defamation can be brought, as compared to an ordinary, private person or company.
The legal definition of a “public figure” was most notably defined by the landmark Supreme Court case The New York Times v. Sullivan, 376 U.S. 254 (1964). If considered a “public figure,” the plaintiff must prove that the defendant acted with “actual malice,” that is, the defendant knew the information was false or acted with reckless disregard for the information’s truthfulness. According to the Digital Media Law Project, in the case of a news outlet being accused of defaming a “public figure,” the court will likely look at the “defendant’s state of mind at the time of publication and . . . examine the steps he took in researching, editing, and fact checking his work,” and add that “it is generally not sufficient . . . for a plaintiff to merely show that the defendant didn’t like her, failed to contact her for comment, knew she had denied the information, relied on a single biased source, or failed to correct the statement after publication.” Thus the scrutiny given for a defamation case may prove to be a challenge for Smartmatic, if they are indeed deemed to be a “public figure” at the time of the broadcast.
This legal battle also brings up a related question on the business of the news media in today’s fraught political climate. Over the past few election cycles, the conversation on heightening political polarization in America, news media bias, and social media “echo chambers” has become increasingly pertinent. Given this context, scholarly investigations into the relationship between media bias and economic profit could frame the question as to why news outlets have gone this far in pushing the Trump campaign’s false election narrative. In the weeks leading up to the election, formerly obscure media companies, like Newsmax and OANN, who were more willing to brazenly push Trump’s falsehoods, were propelled into direct competition with Fox News. After Fox called Arizona for Joe Biden, Trump unleashed several enraged tweets accusing the network of forgetting “what made them successful.” On the week of November 30, Fox’s viewership fell to less than seven times that of Newsmax, and in December, a Newsmax show out-rated a Fox show for the first time. In their attempt to establish themselves as more pro-Trump alternatives to Fox, Newsmax and OANN have undoubtedly enjoyed financial benefit and an increase in ratings.
However, conservative outlets are taking these legal threats seriously. After receiving Smartmatic’s initial letter threatening legal action in December of 2020, Fox released an on-air fact checking segment, which seems to retract the doubts their own hosts cast on the election. Another incident on Newsmax happened earlier this February, when anchor Bob Sellers tried to cut off MyPillow CEO Mike Lindell mid-rant about election conspiracies. Sellers soon reversed course by issuing an apology to Lindell and calling him “a friend of this network,” in what some saw as Newsmax trying to do damage control. Around the same time, OANN debuted Lindell’s “Absolute Proof,” a “documentary” pushing election falsehoods. However, they prefaced the show with a nearly one and a half minute long disclaimer stating that OANN “does not adopt or endorse any statements or opinions in this program,” and that Lindell’s claims “are not intended to be taken or interpreted by the viewer as established fact.” A potential legal victory for Smartmatic could force these outlets to, once and for all, change their reporting practices.
Although it is still uncertain whether Newsmax’s recent rise to fame will cement a long-lasting competition with Fox News, the outcome of the Smartmatic and Dominion’s lawsuits could potentially limit conservative news networks’ ability to engage with demonstrably false information, thus changing the way smaller conservative media outlets compete with larger networks. It could also influence how Fox navigates their stance between the bounds of “hard” journalism and retaining pro-Trump viewers through commentary shows. Yet, even if the suit goes to court and Fox loses, it will not be enough to root out the problem of “fake news” in American society. With the expanse of social media today, there are always new websites and applications for individuals to turn to. Furthermore, the about-face many Republican lawmakers displayed when they initially condemned Trump in the aftermath of the Capitol attack, but soon after seemed to prefer quickly forgiving and moving on from the incident, propels a dangerous strain in the Republican party that is unwilling to take aggressive accountability in cutting out conspiracy theorists. As long as Republican politicians continue to pave a path that enables Trump supporters to avoid reality, a court ruling in favor of Smartmatic and Dominion could possibly further conspiracy theories about a “deep state” plot against Trump in the end.
