Hang on! Don’t write that negative comment just yet.
We know discourse surrounding Fox News and other cable news shows can be toxic and openly partisan, but we’re going to try to do something different in this editorial.
It’s no secret that the majority of the Editorial Board has a propensity toward liberal ideas that may sway us when it comes to contentious issues, but there is something big involving Fox News right now that requires us to do our best to separate our conclusions from our ideological beliefs.
The question raised by the situation is: How much can news companies stretch the truth before they are held accountable?
This question has vexed legal scholars since 1964 when the Supreme Court ruled that a prosecutor would have to prove that a newspaper acted with “actual malice” to be held liable for any falsehoods they may have published.
Actual malice is defined by the defendant making a defamatory statement they either knew was false or with reckless disregard toward the truth of the matter.
The actual malice standard makes it incredibly hard for a media company to be legally at fault in a defamation case. It is impossible to get inside a defendant’s head to know what they knew at the time of the statements in question.
So why might the Fox News case be an exception?
In March of 2022, the voting machine company Dominion Voting Systems sued Fox for $1.6 billion over defamatory statements the media company made on air about Dominion products in the aftermath of the 2020 election.
Dominion pointed to specific instances where both hosts and guests on the show spread false claims that the company assisted with mass voter fraud to swing the election in President Joe Biden’s favor.
On its own, examples of Fox hosts lying on air would not be enough to reach the actual malice standard. However, two weeks ago, the case against the news company became significantly stronger with the release of text messages between on-air personalities that showed they knew the claims guests made pertaining to Dominion participating in voter fraud were false.
The texts included those by Fox host Tucker Carlson, who called former president Donald Trump’s lawyer Sidney Powell “a nut” and said her claims were “absurd.” At the same time, he was giving credence to her claims on his show, contradicting himself.
These new revelations, to us, seem to make this a cut-and-dry case of defamation (and we are now versed in legal matters because of our department’s Media Ethics and Law course).
Fox News knew the things they were saying on air were untrue and could be damaging to Dominion, but they continued to say them anyway to maintain viewers rather than losing them to further-right shows like Newsmax or One America News.
This is where we will back off from any ideological points in order to understand a more important legal one.
No matter the verdict, this case will have a permanent impact on media companies’ ability to knowingly lie without recourse.
If Dominion wins, the previously elusive line when it comes to media conduct will be firmly drawn. The limits of lying in the news will be established.
If Fox wins, this line remains shrouded in mystery, but it moves back a significant distance. It would mean media companies could lie about a person or a company while simultaneously admitting they knew they were lying and still not be able to be successfully sued.
It doesn’t matter that the subject of this case happens to be Fox News. If CNN or MSNBC were involved in a case like this, our opinion would be the same.
The last election cycles have been mired with excessive media involvement and conveniently stretched truths. A win for Fox News would give legal precedent to both this new standard of partisan coverage and lies beyond its current scope.
If this happens, we won’t know where the line is until another company decides to grow bold and move into the legal gray area. By the time that happens, the damage may already be done.