Darragh Worland:

The First Amendment guarantees freedom of the press and free speech, but that freedom isn’t absolute and in the digital age, its limits are being tested in new and different ways.

RonNell Andersen Jones:

We see plenty of examples right now in our current day of powerful political people who would like to silence their critics using lawsuits or the threat of lawsuits.

Darragh Worland:

That’s law Professor RonNell Andersen Jones, a former newspaper reporter and editor and now a First Amendment scholar on the intersection between media and the courts. I’m Darragh Worland and this is Is That a Fact here to talk about how lawsuits like those against Fox News have served the fight against the rampant spread of disinformation and their potential to diminish press freedom.

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Darragh Worland:

We’ve been hearing a lot about so-called defamation lawsuits in recent years. Is defamation as an area of law having a moment, and if so, why is that?

RonNell Andersen Jones:

I definitely think it is, or it’s at least having a moment in a particular kind of targeted suit, cases that are trying to use defamation law to tackle the broader social problem of disinformation and to engage in sort of democracy preservation actions. And that’s quite a new development and something that we’ve seen … a sort of crop of cases emerge, particularly in the aftermath of the 2020 election. I guess part of it is that people are casting around for some tool that might be possible to tackle this massive problem of disinformation and, in at least some subset of those cases, defamation turns out to be a useful tool.

Darragh Worland:

Can you describe in the simplest terms what is defamation?

RonNell Andersen Jones:

Yes. At base, a person who’s suing another person or entity for defamation is suing over a lie. They’re saying “a lie was told and I can prove it.” That’s the sort of core of what’s happening there. But defamation isn’t a suit that is useful for tackling all lies in our society, and in fact, that’s one of the reasons why it falls short of being an all-purpose tool for this problem of disinformation because lots of lies that are told in our society are sort of generalized and don’t really target anybody’s reputation and don’t really speak to any particular individual or entity, right? So a lie like “the election was stolen,” “the vaccines are killing people.” There’s nobody’s reputation on the other end of that, and defamation requires a person who is, or entity, who is suing, to prove not just that someone told a lie about them but also that it was defamatory. That is that it harmed their own reputation. It lowered their standing and caused them damages that they can prove up, right? People thought less of me because of this lie that was told. That’s the sort of key difference here. It can be useful. If we take those broader lies that I just described, you know, “the election is stolen” is not a lie that could give rise food defamation suit. But specific lies that target, for example, election workers or election officials or postmasters or voting machine companies who had lies told about them that harmed their reputations. Those can be litigated in court in a defamation suit. And what they’re proving up isn’t the sort of broad question of election denialism. They’re proving the narrower issue that a lie was told about them that harmed their reputation and that they’re entitled to compensation for the harm that was done to them.

Darragh Worland:

Can I sue someone for defamation, for defaming me, even though the majority of the public does not know who I am?

RonNell Andersen Jones:

Yes, private people can bring these suits. The constitutional standards are sometimes different in those instances, depending on what the topic of the defamation was, and of course, the damages would be radically different. The value of some people’s reputation is not as high as the value of some, you know, major company’s reputation – the sort of dollars that are attached to that, if it shuts you down as a voting machine company as compared to it causes you some minor harm amongst a smaller circle of people who knew you.

Darragh Worland:

Can you talk a little bit more about, like, what are the standards that need to be met in order to sue someone for defamation?

RonNell Andersen Jones:

Yes. The plaintiff in every suit, every person who wants to come and prove to the court that they have been defamed and that they should prevail in a defamation case, has to prove a set of things. The first is that they have to prove that they were identified. Sometimes that’s easy. The person said your name. Sometimes you have to piece it together, right? They said things about you that made it obvious to other people that they were talking about you. The other thing that they have to show … the law calls it “publication,” but what it really means is that somebody besides the two of you heard this, that it wasn’t just a private conversation between the Defamer and the Defamee, but it got out there to other people and therefore had the possibility of hurting your reputation with somebody.

They also have to show, as we just said, falsity, right? The burden is on the person who’s suing to come in and show (that) the thing that was said about me wasn’t true, which is one of the reasons that defamation law turns out to be an interesting tool for tackling disinformation in at least some cases because we get an official finding, right, from a court that that thing that was said wasn’t the truth, right? That that thing was false. On your way to a defamation conclusion in a suit, you get a holding from a court that the stated thing was a falsehood. Of course, you have to show that reputational harm, that the damage was done to you. That something, the thing … that was said to you about you wasn’t just untrue, but that it was defamatory. There are lots of false things that really don’t register any diminishment of your reputation. And then layered onto that, from 1964 onward, there is a constitutional standard that applies in all cases and for people who are public figures or who are public officials, the fault requirement that has to be shown is a quite difficult barrier. You have to show that the person or entity or news organization or whoever it was on the other side that said this false and defamatory thing about you did so not just inaccurately and not just being sloppy and not just behaving in a way that sort of fell short of what reasonable journalists, for example, would’ve done, but rather that they did so knowing it wasn’t true or, with what the law calls reckless disregard for the truth. Knowing falsity and reckless disregard for the truth is a really difficult standard. You have to basically climb inside the head of the person who did, or entity that did, the defaming and show, (that) at the time that they said it, they knew it wasn’t true and they forged ahead with it anyway. And that’s quite difficult evidence to gather and deliberately so. Constitutionally we want it to be difficult to weaponize defamation law to silence critics, and we want there to be some freedom of dialogue, robust conversations on matters of public concern. And so that fault standard has been, for the last many decades, sort of core component of First Amendment law is tacked on to defamation law and is required of everybody who wants to sue for that.

Darragh Worland:

So this is what came out of the Supreme Court ruling in New York Times v Sullivan and it allows news organizations to make mistakes and to then, of course, in the case of standards-based news, organizations publish corrections or issue corrections in some fashion. It’s sort of the, the cost of doing business in the case of journalists, right? Sometimes we make mistakes, but what do you do in the case of someone who believes a conspiracy theory and is peddling a conspiracy theory and spreading it far and wide, but also causing reputational harm to somebody?

RonNell Andersen Jones:

I sometimes refer to this as “the delusional defamer,” right? The person who in the face of all conflicting evidence and all expert material available just forges ahead, but genuinely to their core, believes this conspiracy theory that they’re peddling. It’s hard to see how that maps onto Sullivan, because Sullivan says, you, you have knowing falsity, right? And that person didn’t know it was false. They should have, right? But should have known it was false, is maybe negligence, but it’s not actual malice. I think we’re gonna see these cases play out. I think we’re gonna see in the coming months and years, a couple of key cases that I can imagine are going to tee up this question quite squarely. And my guess is that what’s gonna happen is that we’re gonna have some additional development of that second piece of the Sullivan standard. Sullivan has not just a knowing falsity piece but also a reckless disregard for the truth piece. It investigates whether there was sort of a high degree of awareness of the probable falsity of this and if sort of all evidence surrounding you and all of available material, right? You had no actual evidence for what was happening and you were, sort of, it was brought to your attention that what you were saying wasn’t true. It may well be that reckless disregard for the truth as a standard has to sort of pick up the baton here and do a little more work in the case of these delusional defamers – people who might want to say to a court they didn’t have knowing falsity, but who, by all accounts, probably ought to be held accountable for distributing really harmful disinformation in the face of no evidence of its truth.

Darragh Worland:

Is it fair to say that this is one of the few limits to free speech that we have in this country?

RonNell Andersen Jones:

Yes, I think that’s right. And part of the concern here is that we have concerns about weaponization on both ends of the spectrum. The Sullivan case, itself, really teed up for us the kinds of concerns that we have to have in a democracy on discussions of matters of public concern about the weaponization of defamation law, right? If it’s too easy for somebody to sue for defamation over a falsehood, powerful people will hold that over everybody’s head and threaten to sue their critics and will silence a lot of conversations we have to be having about them. In Sullivan, itself, The New York Times pulled out of some Southern states for up to a year because the sort of staggering damages that they were facing in the defamation cases made it too difficult for them to be able to give coverage to things that were happening there because every minor error might give rise to a massive lawsuit.

We see plenty of examples right now in our current day of powerful political people who would like to silence their critics using lawsuits or the threat of lawsuits. So we have to be, have real sensitivity to that. On the other end, we have the concern about the weaponization of First Amendment protection in this space that people who are obviously peddling disinformation for politics and profit will invoke First Amendment protections, even in instances in which they are engaged in sort of obvious knowing falsity and will try to sort of wrap themselves up in those First Amendment protections. So you can think of the boundary in sort of two different ways. The First Amendment acts as a boundary on the scope of defamation law, and defamation law acts as a boundary on the kinds of First Amendment rights that we have. The Sullivan case was really about trying to create a balance.

Darragh Worland:

You’ve obviously been alluding throughout this conversation to the Dominion lawsuit, so we definitely need to address it, and most of us by now have heard at least the basics or mention of Dominion’s lawsuit against Fox News Channel. But for the benefit of our listeners, could you describe in simple terms, what was at stake and what was the outcome of that particular case?

RonNell Andersen Jones:

Dominion Voting Systems is a voting machine company that had some machines that were involved in the 2020 election. It sued Fox News and Fox News’ parent company for defamation focused on defamatory lies that were told in the aftermath of the 2020 election, sort of suggesting that the election was stolen. Among the defamatory statements that it said were told by guests and hosts on Fox programming was essentially the narrative was that Dominion was invented in Venezuela to rig elections by Hugo Chavez and then brought to America to rig elections here, and that it, algorithmically, was siphoning votes away from Trump and over to Biden, all of which was false. In fact, at an early stage in the proceedings before it moved to trial, the judge in that case said the falsity wouldn’t even move forward to be argued before the jury because it was so clear that it was false. His order said it was crystal clear, that everything that had been said about Dominion that was the center of this suit was, in fact, false and that it was, in fact, reputation harming that these statements about them that were made by guests and hosts on Fox caused them significant harm as a company.

The remaining piece that needed to be litigated that was moving forward to trial was that question of actual malice of whether the key people at Fox News who were responsible for airing these statements about Dominion acted with knowing falsity or reckless disregard for the truth. Dominion amassed a trove of internal evidence that it said pointed to knowing falsity, text messages and exchanges, internal memos. It created a narrative arc that suggested that Fox made a conscious corporate decision to lean into election denialism when it saw Trump voters gravitating to other outlets in the right wing ecosystem that were more willing to entertain that kind of election denialism and that individual show hosts and producers and guests made the decision to sort of invent this lie about Dominion to spark interest and gin up viewers.

They were prepared to go to trial to litigate this and on the very eve, the the 11th hour – not just the 11th hour, like the 11th hour and the 59th minute – right after the jury had been empaneled and as opening arguments were about to be made to them, a settlement was announced. It was three quarters of a billion dollars believed by many defamation scholars and commentators to be the largest defamation settlement in U.S. history, although we don’t know because settlements numbers often aren’t revealed. So part of the win that we think that Dominion may have argued for here is that they wanted … they made Fox agree that the number would be revealed so that people would have a sense of the takeaway when that happened there. There are additional – many additional – cases that still remain. Dominion is suing other individual entities who were involved in the spreading of that lie and other entities are suing Fox.

Darragh Worland:

So “actual malice” is the legal term that’s used for knowing harm?

RonNell Andersen Jones:

Yep. Actual malice can be proven in one of two ways by showing knowing falsity. The speaker when they said it knew that it was false, sort of had a state of mind. They were aware that it wasn’t true and said it anyway. And the second possibility is to show reckless disregard for the truth, that they … not necessarily that they knew it, but they just had a high degree of subjective awareness of its probable falsity that, right. All signals were there and it’s very hard. Both are very hard to prove. Mere sloppiness won’t do. Mere bias won’t do. Inaccuracy, by itself, is not enough. But Dominion said it was prepared to do so that it had what it thought of as smoking-gun evidence of people texting each other inside the company, key players at Fox saying things like “this is crazy” or “she’s lying” or “this is ludicrous” – the sorts of things that those of us who work in the defamation space just are not accustomed to seeing, and presumably Fox made the calculation that it wasn’t worth it to move ahead to trial, in part because many Fox executives sort of up and down the line would’ve been placed on the stand. And the tensions that would’ve existed there in terms of the internal conversations that would be exposed about what key Fox players said about former President Trump, what they said about their own audience, what they said about their own sources would have led to a lot of embarrassment for the company, and it was better to make the case go away.

Darragh Worland:

What exactly is the win there in revealing such a large figure?

RonNell Andersen Jones:

Yeah, I mean, settlements are tricky matters, right? They get ironed out in every little detail of what will be said, what will be conceded, what will not be conceded, what statements will be made to the public, what parts will be made available for review and what discussions will be able to happen afterwards. You could tell that this was a very carefully calculated settlement. Interestingly, the assertions that Fox itself made in the settlement statement, were not to admit that they engaged in knowing falsity. They acknowledged that the judge acknowledged that it was false, which, of course, you have to acknowledge that’s … that was a holding from the court that the court had already concluded. So it was sort of once removed from taking any responsibility for having a tie to this falsity. Presumably, the pushback that they got on the Dominion front was that Dominion wanted the number to be big and wanted the number to be public. And both of those things are just signal senders, right? They’re sending a signal that Fox was nervous, that Fox knew that it didn’t have a winning case, that Fox, I mean … settlements do not concede guilt. They don’t have to, and people settle and companies settle for all sorts of reasons, sometimes just to avoid the difficulty of a long drawn out suit or because jury trials are unpredictable. Even though you think you might win on the law, you don’t want to take the risk in front of a jury. But when the number is high, it sends a signal that the company thought it was in trouble, that the company thought there was a decent chance that on the other end of this, it ended up with a verdict against, a determination by a jury in Delaware that they had not only told a defamatory lie but had done so knowing that it was a lie and the exposure that that would’ve caused to a number of key players in the Fox corporate universe would’ve been pretty staggering.

Darragh Worland:

So I know in England, the way it works is, you know, the tabloids will publish lies, disinformation fairly regularly, even though, the laws against defamation are pretty strict there. But the tabloids sort of build into their business model, the routine paying of fines. Is that what we might see here? Or was this number so large that this could potentially act as a deterrent, not against a free press, but against this kind of knowing actual malice?

RonNell Andersen Jones:

Yeah, I think it’s a really fair question. This sort of cost of doing business calculus that might come into play and particularly when we layer it onto the Alex Jones scenario where declaring of bankruptcy and moving around assets actually makes it so that the dollars that were earned from the telling of the lie ultimately aren’t accessible by the people who were the victims of the lie. And all of those things are things that courts try to take into account, right? The egregiousness of the situation can, in some egregious situations, even a declaration of bankruptcy can be overcome to get at assets in those sorts of situations. I guess to the wider question of the Fox dynamic … in some respect, I mean, Fox is an incredibly well-resourced company. They have a lot of dollars in the bank and they continue to have a lot of dollars in the bank in the aftermath of paying out this quite staggering sum to Dominion Voting Systems whether they would continue to have that sort of boldness in spreading those sorts of false and defamatory statements after a few of these? There are more in the queue. So let’s imagine that next year or the year after that they lose or settle for a very high number in the Smartmatic case, which is seeking 2.7 billion with a “B” … that’s starting to get into a lot of the cash on hand that Fox has. It has an obligation to its own shareholders not to engage in that sort of … those sorts of losses.

And so the question about how profit and finance and the incentives – how the incentive structures work and map onto this space – I think is gonna be one of the most important pieces of this going forward. There are lots of folks who, I think cynically, think that some of the biggest takeaways we’re sort of asking what lessons peddlers of conspiratorial lies learned from these cases. One very sad lesson that they’ve probably learned is not to put evidence of their knowing falsity in readily discoverable communications. So don’t text each other that “this is a lie” and that “this is ludicrous” and that “this person is crazy.” You could certainly figure out a way internally to curb some of the evidence of your knowing falsity in those sorts of spaces. That I expect is one of the takeaways that major proprietors of disinformation might be gleaning from this kind of discovery and this kind of suit. And whether there will also be internal calculations about whether the viewers we win back who are craving these conspiracy theories and seeking to hear this disinformation are worth enough that we can pay out some defamation damages on the other end might also be part of the calculus. Defamation law has been pretty nimble in trying to address those sorts of things in the past, trying to think about the ways that damages can be calculated to curb sort of those incentives. Whether it’ll be able to keep a pace with it, I think will be an interesting question as a big piece of the problem here is that we’re asking defamation law to pull too heavy a laboring. It’s probably not gonna be the tool that magically solves all of our disinformation problems and, thinking creatively about the fact that there are lots of other avenues on both the supply side and the demand side, curbing the problem of disinformation in our communities is gonna be a really important next step.

Darragh Worland:

Some politicians have talked about weakening defamation laws. What might that mean for journalists?

RonNell Andersen Jones:

Yeah, I think it would be quite risky for journalists. I think New York Times vs. Sullivan teaches us that it would be quite dangerous for journalists because defamation suits against big media outlets that have deeper pockets and that have libel insurance that can be tapped into are quite attractive, much more attractive than suits against sort of individual trolls on the internet, or people who are spreading the lies in various ways, and so they’re walking around pretty constantly with a target on their backs and they are most likely to be the folks who are engaged in some of the work that we think is most countering of disinformation. The operation of the press function in modern times is very much sort of seeing something that people are saying, doing research with real experts to convey what’s accurate and engaging in that corrective. But if they’re constantly fearful that they will be targeted with defamation suits and that minor errors or sloppy missteps along the way will lead to staggering damages that could sort of cripple the whole institution at a time when they are already struggling – local news outlets, in particular, are caving everywhere, but even major news outlets – taking a big hit like this could really have to change their incentives in significant ways and the Sullivan court emphasized this. It said we have to have, they called it “breathing space.” We have to have some “breathing space” to be able to tolerate some falsity and recognize that it’ll get corrected in subsequent stories and from subsequent counter speech from the affected individuals. If you’re a big, powerful politician or famous person and something that is false is said about you, you’re not without recourse. You can contribute your own conversation about that. You can come out and hold your own press conference and tweet and spread information that can have that corrective effect and that that’s a much healthier system than a system that isn’t protective enough of the journalistic process and of the process of people having conversations about their elected officials.

Darragh Worland:

Thank you so for breaking down this very complex legal topic in very simple terms for all of us who are not legal experts, but who also want to understand why we’ve been hearing about defamation so much lately, so thank you so much, RonNell. This has been fantastic.

RonNell Andersen Jones:

You bet. Thanks for having me.

Darragh Worland:

There’s no question that libel lawsuits are one way individuals and corporations targeted by disinformation can fight back. But legal experts warn they could have a chilling effect on free speech. And libel law is not a cure-all because not all disinformation is targeted at individuals or entities that can be sued. So there’s no question that knowing how to discern fact from fiction remains one of the most important skills of the digital age. Check your sources. Challenge your biases. Don’t allow your partisan leanings to control what you believe to be true, even when the information you’re confronted with contradicts your beliefs.

Is That a Fact is a production of the News Literacy Project, a nonpartisan education nonprofit building a national movement to create a more news literate America. For more, go to newslit.org. I’m your host, Darragh Worland. Our producer is Mike Webb, and our theme music is by Aaron Bush. And thanks to our podcast production partner Rivet 360. For more about their services, go to rivet360.com.