Decades-old ruling in focus as Dominion suit threatens media freedom

Decades-old ruling in focus as Dominion suit threatens media freedom

A Dominion executive demonstrates one of his company's touchscreen voting machines.

Decades-old ruling in focus as Dominion suit threatens media freedom

A 59-year-old Supreme Court ruling could become the epicenter in a fight to preserve such media content that appears at American Family News and other conservative outlets, according to the founder of The Article III Project.

The Court in 1964 overturned a lower-court ruling and sided with the New York Times in a defamation lawsuit brought by Montgomery, Alabama Police Commissioner LB Sullivan.

The Court gave the newspaper greater latitude in reporting news that involved a public official when it said the official would have to prove "actual malice." The ruling gave extra protection to journalists in their role as government watchdogs as it required public officials to prove knowledge of false statements or reckless disregard for the truth.

Last week, Denver-based Dominion Voting Systems filed a $1.6 billion lawsuit against Fox News for its coverage of Donald Trump's reelection bid in 2020.

Dominion argued that Fox recklessly repeated false accusations from supporters of the former president that its machines and the software used were responsible for Trump's 2020 election loss. Documents released during the lawsuit have shown that top Fox executives and personalities didn't believe the claims but aired them anyway.

"There was a deliberate decision by those responsible for the broadcasts … to let the story be out there," Dominion attorney Rodney Smolla said, adding that Fox News was desperate to win back viewers infuriated that the network had correctly called Arizona, a key battleground state, on election night for Joe Biden. "What they did to get viewers back was start this new narrative that the election had been stolen and that Dominion was the thief."

But Fox contended it was simply reporting on newsworthy allegations – a sitting president's claim that the election was being stolen from him.

Be careful what you ask for

Some have suggested that it's time to revisit New York Times v. Sullivan, but Article III founder Mike Davis argues such a move could damage conservative news outlets.

The group's website says The Article III Project defends constitutionalist judges and judicial independence through media and political engagement.

Davis, Mike (Article III Project) Davis

"A Dominion victory against Fox would cause grave damage to free press and free speech," Davis told American Family Radio host Jenna Ellis on Monday. "It's going to create too much liability for news organizations going forward."

He continued: "Particularly you're going to see the leftists target conservative media outlets. It's Fox or your show Jenna, Steve Bannon's show or whoever's show; they're going to be targeted by the Left with these frivolous lawsuits, not because they actually care about winning a lawsuit. The goal is to take out conservative media."

Much of the Fox News format is based on discussion of events not only with program hosts but with guess commentators as well. That's an important distinction, Davis said.

"That's the whole point of an opinion show. You can have both sides. Dominion didn't want to go on these shows and provide the other side. This is the 'give and take' of journalism. The Democrats pretend they care about democracy. This is the give and take about democracy. You come on and you can discuss all sides," he said.

Fox's deep pockets

Davis contends that Dominion recognizes this but sees financial benefits in going after Fox News.

"They're suing the wrong defendants. If they're suing for defamation, they should sue the people who Dominion thinks made the defamatory statements, but instead they're going after Fox News because [it] has deeper pockets. The problem with going after Fox News because they have deeper pockets is that it's going to destroy the free press and free speech in this country if Dominion wins this lawsuit."

The most visible example of this was Twitter's removal of President Donald Trump before the Elon Musk takeover of Twitter.

"The biggest driver of censorship in this country is Big Tech. What we need to do is break up Google, Amazon, Facebook and Apple [and] their trillion-dollar monopolies in various parts of the tech market."

The biggest offender is Google, Davis said.

"We need to start with breaking up Google's monopoly over online advertising. They dominate the online advertising market. They actually monopolize all three sides: the buy side, sell side and trade side. If we break up that advertising monopoly, you're going to see a lot more freedom of speech in this country. Google would not be able to use their domination to control speech online."

Davis believes the Actual Malice standard is important and would be stronger had it come to pass as legislation and not court opinion, but he warns against possible effects of changing things now.

"The Supreme Court did that to protect people who want to come into the public debate to criticize public officials and public figures on public topics," he said. "I worry that the Left is going to use lawsuits to wipe out conservative media. We have to be careful what we ask for if we want to have New York Times v. Sullivan reversed. I can see both sides of the arguments, and I think there are positives and negatives."

The Associated Press contributed to this report.