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      First Amendment Scholars Want to See the Media Lose These Cases

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      Some legal experts say it is time to draw a sharp line between protected speech and harmful disinformation.The lawyers and First Amendment scholars who have made it their life’s work to defend the well-established but newly threatened constitutional protections for journalists don’t usually root for the media to lose in court.But that’s what is happening with a series of recent defamation lawsuits against right-wing outlets that legal experts say could be the most significant libel litigation in recent memory.The suits, which are being argued in several state and federal courts, accuse Project Veritas, Fox News, The Gateway Pundit, One America News and others of intentionally promoting and profiting from false claims of voter fraud during the 2020 election, and of smearing innocent civil servants and businesses in the process.If the outlets prevail, these experts say, the results will call into question more than a half-century of precedent that created a clear legal framework for establishing when news organizations can be held liable for publishing something that’s not true.Libel cases are difficult to prove in the United States. Among other things, public figures have to show that someone has published what the Supreme Court has called a “calculated falsehood” or acted with reckless disregard for the truth.But numerous First Amendment lawyers said they thought the odds were strong that at least one of these outlets would suffer a rare loss at trial, given the extensive and well-documented evidence against them.That “may well turn out to be a good thing,” said Lee Levine, a veteran First Amendment lawyer who has defended some of the biggest media outlets in the country in libel cases.The high legal bar to prove defamation had become an increasingly sore subject well before the 2020 election, mainly but not exclusively among conservatives, prompting calls to reconsider the broad legal immunity that has shielded journalists since the landmark 1964 Supreme Court decision New York Times v. Sullivan. Critics include politicians like former President Donald J. Trump and Sarah Palin, who lost a defamation suit against The Times last month and has asked for a new trial, as well as two Supreme Court justices, Clarence Thomas and Neil M. Gorsuch.Mr. Levine said a finding of liability in the cases making their way through the courts could demonstrate that the bar set by the Sullivan case did what it was supposed to: make it possible to punish the intentional or extremely reckless dissemination of false information while protecting the press from lawsuits over inadvertent errors.“If nothing else,” Mr. Levine added, “it would effectively rebut the recent contentions that the Sullivan regime doesn’t work as intended.”The Sullivan case, which legal scholars consider as seminal to the First Amendment as Brown v. Board of Education of Topeka was to civil rights, established the “actual malice” standard for defamation. It requires that a suing public figure prove a person or media outlet knew what it said was false or acted with “reckless disregard” for the high probability that it was wrong.Calls to weaken that precedent drew considerable resistance from advocates for press freedom. But many of them have come to see the threat of a defamation suit — a tactic often used by the powerful to retaliate against and mute unwelcome criticism — as an essential tool in the battle against disinformation.Increasingly, many First Amendment lawyers see the courts as one of the last viable paths to deter the spread of political disinformation and help prevent repeats of dangerous situations — from another Jan. 6-style riot to the more isolated threats against local officials that grew out of Mr. Trump’s false insistence that the election was stolen from him.“I think we are at a time in U.S. history and world history of losing any ability as a civilization to distinguish between truth and falsity,” said Rodney Smolla, a lawyer representing Dominion Voting Systems, a technology company suing Fox News and several individuals who promoted conspiracy theories about the last election, including Rudolph W. Giuliani and Sidney Powell.“And one of the few legal avenues in which civilized countries have attempted to distinguish between truth and falsity is defamation law,” said Mr. Smolla, who believes the Sullivan decision is sound law. A judge in Delaware, where the Dominion suit was filed, denied Fox’s motion to dismiss the case in December, and it is now in the discovery phase.As a defense, Fox and others invoke the First Amendment and Sullivan, arguing that their reporting on the 2020 election and its aftermath is legally indistinguishable from the kind of basic, just-the-facts journalism that news organizations have always produced. Fox has portrayed itself as a neutral observer, saying it did not endorse claims about hacked voting machines and systemic voter fraud but instead offered a platform for others to make statements that were unquestionably newsworthy.As Fox News mounts its defense in the Dominion case and in a lawsuit by another voting systems company, Smartmatic, the network’s lawyers have argued that core to the First Amendment is the ability to report on all newsworthy statements — even false ones — without having to assume responsibility for them.“The public had a right to know, and Fox had a right to cover,” its lawyers wrote. As for inviting guests who made fallacious claims and spun wild stories, the network — quoting the Sullivan decision — argued that “giving them a forum to make even groundless claims is part and parcel of the ‘uninhibited, robust and wide-open’ debate on matters of public concern.’”Last week, a federal judge ruled that the Smartmatic case against Fox could go forward, writing that at this point, “plaintiffs have pleaded facts sufficient to allow a jury to infer that Fox News acted with actual malice.”The broadness of the First Amendment has produced strange bedfellows in free speech cases. Typically, across the political spectrum there is a recognition that the cost of allowing unrestrained discourse in a free society includes getting things wrong sometimes. When a public interest group in Washington State sued Fox in 2020, alleging it “willfully and maliciously engaged in a campaign of deception and omission” about the coronavirus, many First Amendment scholars were critical on the grounds that being irresponsible is not the same as acting with actual malice. That lawsuit was dismissed.But many aren’t on Fox’s side this time. If the network prevails, some said, the argument that the actual malice standard is too onerous and needs to be reconsidered could be bolstered.“If Fox wins on these grounds, then really they will have moved the needle too far,” said George Freeman, executive director of the Media Law Resource Center and a former lawyer for The New York Times. News organizations, he added, have a responsibility when they publish something that they suspect could be false to do so neutrally and not appear to be endorsing it.Fox is arguing that its anchors did query and rebut the most outrageous allegations.Paul Clement, a lawyer defending Fox in the Smartmatic case, said one of the issues was whether requiring news outlets to treat their subjects in a skeptical way, even if their journalists doubt that someone is being truthful, was consistent with the First Amendment.“If you’re superskeptical, you’re covered, but if you express sympathy, then somehow you’re not?” Mr. Clement said. “To me, that seems fundamentally problematic and antithetical to First Amendment values.”One America News also faces a lawsuit accusing it of deliberately promoting and profiting from false claims of voter fraud. It has not yet responded to the suit.The New York TimesPerhaps the boldest in claiming that they were merely reporting on important events and so are protected by the First Amendment are Project Veritas and its founder, James O’Keefe. They are being sued for publishing and amplifying the claims of a postal worker in Erie, Pa., who implicated his boss in a plot to backdate mail-in ballots and help elect President Biden. An investigation found no evidence to support those claims.In legal briefs, lawyers for Mr. O’Keefe and Project Veritas have called their work “the stuff responsible journalism is made of” and claimed that the case would put “news-gathering itself on trial.” To bolster their argument, they cite examples of how Project Veritas worked in ways that would seem consistent with professional news reporting, including reaching out to the accused postal supervisor for comment twice. A lawyer representing Mr. O’Keefe had no comment.The lawsuit, however, paints a different picture from the “scrupulous” reporting that Project Veritas lawyers described. It recounts how, after the election, the outlet published multiple articles about someone it identified as a whistle-blower, Richard Hopkins, who came forward with accusations that the local postmaster, Robert Weisenbach, was a “Trump hater” and had ordered employees to backdate mail-in ballots to help Mr. Biden.But the lawsuit claims that Mr. Hopkins changed his recollection of events when postal inspectors questioned him, admitting that he did not know whether Mr. Weisenbach had directed anyone to backdate ballots. As for whether Mr. Weisenbach was really the “Trump hater” Mr. Hopkins made him out to be, Mr. Weisenbach said he had voted for Mr. Trump.In the complaint, Mr. Weisenbach’s lawyers argued that what Project Veritas had done “was not investigative journalism.” Rather, they said, “it was targeted character assassination” aimed at undermining public faith in democracy.“It has no place in our country,” the complaint added.Protect Democracy, a nonpartisan advocacy group representing Mr. Weisenbach, is also assisting two public employees in Georgia who were falsely accused of orchestrating voter fraud. The pair, a mother and daughter, are suing The Gateway Pundit and One America News over articles that accused them of helping fake a water main break at a Fulton County ballot counting center and then telling everyone to go home so they could add suitcases full of illegal ballots to Mr. Biden’s totals.OAN has not yet responded to the suit. Lawyers for The Gateway Pundit have denied the claims in court filings.Rachel Goodman, counsel for Protect Democracy, said this kind of litigation “makes clear that there are steep costs to recklessly or intentionally spreading fiction for political or personal profit.”“It reminds them that the speech standards that have governed the marketplace of ideas for decades apply to them, too,” Ms. Goodman added. More

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      Much of Smartmatic Case Against Fox News Can Proceed, Judge Rules

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      The $2.7 billion defamation lawsuit against Fox News by the election technology company Smartmatic can move forward, a New York judge ruled on Tuesday. But the judge tossed out Smartmatic’s defamation claims against the Fox News host Jeanine Pirro and a network guest, Sidney Powell.Smartmatic sued Rupert Murdoch’s cable news networks last year, along with several Fox hosts and guests. The lawsuit accused them of damaging the company by promoting a false narrative about the 2020 election: that Smartmatic and other voting systems companies tried to rig the race against President Donald J. Trump. Smartmatic later expanded its legal battle against disinformation to the right-wing media outlets Newsmax and One America News Network.On Tuesday, Justice David B. Cohen of State Supreme Court in Manhattan said in a 61-page ruling that, “at a minimum, Fox News turned a blind eye to a litany of outrageous claims about plaintiffs, unprecedented in the history of American elections, so inherently improbable that it evinced a reckless disregard for the truth.”He added, “At this nascent stage of the litigation, this court finds that plaintiffs have pleaded facts sufficient to allow a jury to infer that Fox News acted with actual malice.”He also declined to dismiss Smartmatic claims against Maria Bartiromo, the Fox Business star, and Lou Dobbs, whose Fox Business show was a frequent clearinghouse for baseless theories of electoral fraud in the weeks after Mr. Trump’s defeat. Fox canceled Mr. Dobbs’s program last year, one day after Smartmatic sued.Citing a legal technicality, Justice Cohen dismissed most of Smartmatic’s defamation claims against Rudolph W. Giuliani, who, appearing on Fox News as a legal representative for Mr. Trump, said the technology company had “tried-and-true methods for fixing elections,” among other false assertions. Even so, Justice Cohen said there was “substantial” evidence that Mr. Giuliani “acted with actual malice insofar as he evinced a reckless disregard for the truth” and ruled that Smartmatic could try again. The judge allowed another part of Smartmatic’s defamation case against Mr. Giuliani to go forward.Fox News vowed a swift appeal.“While we are gratified that Judge Cohen dismissed Smartmatic’s claims against Jeanine Pirro at this early stage, we still plan to appeal the ruling immediately,” the network said in a statement. The network added that it would “continue to litigate these baseless claims by filing a counterclaim for fees and costs” under New York’s anti-SLAPP (strategic lawsuit against public participation) statute, which is meant to quickly set aside lawsuits that may be intended to chill free speech.Fox News said it would do so “to prevent the full-blown assault on the First Amendment which stands in stark contrast to the highest tradition of American journalism.”In dismissing the claim against Ms. Pirro, Justice Cohen said that while she had asserted on her show that Democrats “stole votes,” she had not specifically blamed Smartmatic’s software.A spokesman for Smartmatic did not reply to a request for comment.Fox News is also battling a related $1.6 billion defamation lawsuit from Dominion Voting Systems, which has accused the channel of advancing lies that devastated its reputation and business. A Delaware judge rejected an attempt by Fox News to dismiss Dominion’s lawsuit in December. More

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      Fox News’ Request to Dismiss Dominion’s Defamation Suit Is Rejected

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      A judge on Thursday rejected an attempt by the Rupert Murdoch-owned Fox News Media to dismiss a $1.6 billion defamation lawsuit brought by Dominion Voting Systems over the network’s coverage of the company’s role in the 2020 presidential election.In the ruling, Judge Eric M. Davis of the Superior Court of Delaware, where Fox is incorporated, wrote that he had denied Fox News Media’s motion to dismiss the lawsuit because it was “reasonably conceivable that Dominion has a claim for defamation.”Dominion, an election technology company, sued Fox News Media in March, accusing it of advancing lies that devastated its reputation and business. More than two dozen states, including several carried by former President Donald J. Trump, made use of Dominion, a Denver company founded in 2002, in last year’s election.Along with another vote tabulating company, Smartmatic, Dominion was at the center of a baseless pro-Trump conspiracy theory about rigged voting machines that gave the election to President Biden. The false claims were promoted by the president and his advisers, including Rudolph Giuliani and Sidney Powell, who appeared on Fox News Channel and Fox Business Network.In May, Fox filed a motion to dismiss the lawsuit, arguing that Dominion’s lawsuit threatened the news media’s First Amendment right to chronicle and assess newsworthy claims.Recent Developments at Fox NewsJan. 6 Texts: Three Fox News hosts texted Mark Meadows during the Jan. 6 riot urging him to tell Donald Trump to try to stop it.Chris Wallace Departs: The anchor’s announcement that he was leaving Fox News for CNN came as right-wing hosts have increasingly set the channel’s agenda.Contributors Quit: Jonah Goldberg and Stephen Hayes quit the network in protest over Tucker Carlson’s “Patriot Purge” special.In his ruling, Judge Davis disputed the arguments put forth by Fox, including that its employees were reporting in a neutral manner on statements made by advisers of the then-president and that claims made on its channels were opinion, and thus constituted protected speech.The judge wrote that he was not persuaded by Fox’s “neutral reportage” and “opinion” arguments. He added that the company either “knew its statements about Dominion’s role in election fraud were false” or that it “had a high degree of awareness that the statements were false.”Judge Davis also noted that Dominion had objected in writing to Fox’s coverage, seemingly to no avail. The allegations made by Dominion in its complaint, he wrote, “support the reasonable inference that Fox intended to keep Dominion’s side of the story out of the narrative.”A Dominion spokeswoman said in a statement: “We are pleased to see this process moving forward to hold Fox accountable.”In a statement on Thursday, a Fox spokeswoman said, “We remain committed to defending against this baseless lawsuit and its all-out assault on the First Amendment.”The 52-page ruling included examples of statements made on shows hosted by Maria Bartiromo, Tucker Carlson, Sean Hannity, Jeanine Pirro and Lou Dobbs, whose Fox Business Network program was canceled in February.The judge wrote that those hosts had provided platforms to people who were spreading the false narrative of election fraud involving Dominion and that the hosts’ own statements sometimes lent weight to the baseless claims. Also figuring in the court’s decision to allow the case to go forward was the fact that other Fox journalists had publicly stated the claims of widespread vote fraud were false.“The nearby presence of dissenting colleagues thus further suggests Fox, through personnel like Mr. Dobbs, was knowing or reckless in reporting the claims,” Judge Davis wrote.Barring a successful appeal of the ruling, Dominion now has the power to compel Fox to produce internal documents related to the issues raised in the suit and to have its employees testify in deposition.Don Herzog, who teaches First Amendment and defamation law at the University of Michigan, said in an interview that Fox faced a decision: It could settle, which might be seen as an admission of wrongdoing, or it could go through the discovery process, which could eventually make its internal communications public.Timothy Zick, a professor at William & Mary Law School who specializes in First Amendment law, said that Fox would be more incentivized to settle the suit than it previously was. “The danger for them is that a lot of embarrassing email correspondence and other documents will come out, if they don’t settle the case,” he said. Mr. Zick added that Dominion might not be willing to settle.The prospect of the publication of Fox’s internal communications concerning its coverage of the 2020 election follows the recent disclosure of text messages sent by its hosts to Mark Meadows, Mr. Trump’s final White House chief of staff, during the Jan. 6 attack on the Capitol. On their shows this week, the hosts Sean Hannity and Laura Ingraham vociferously defended the messages, which made vivid the close relationship between the network and Mr. Trump’s administration. Mr. Hannity and Ms. Ingraham said that nothing in their text messages differed from their public statements.Fox faces another high-stakes legal battle over its election coverage because of a defamation lawsuit filed in February by Smartmatic.The day after Smartmatic filed its suit, Fox Business Network abruptly canceled “Lou Dobbs Tonight.” Mr. Dobbs, a loyal supporter of Mr. Trump, was the host of the channel’s most-watched show.In its suit, Smartmatic cited a false claim made by Ms. Powell on “Lou Dobbs Tonight” that Hugo Chávez, the former president of Venezuela, had a hand in the creation of Smartmatic technology, designing it so that the votes it processed could be changed undetected. (Mr. Chávez, who died in 2013, did not have anything to do with Smartmatic.) Mr. Dobbs had also referred to the supposed vote conspiracy as “cyber Pearl Harbor,” borrowing a phrase that had been used by Ms. Powell. More

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      Trump Campaign Knew Lawyers' Dominion Claims Were Baseless, Memo Shows

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      Days before lawyers allied with Donald Trump gave a news conference promoting election conspiracy theories, his campaign had determined that many of those claims were false, court filings reveal.Two weeks after the 2020 election, a team of lawyers closely allied with Donald J. Trump held a widely watched news conference at the Republican Party’s headquarters in Washington. At the event, they laid out a bizarre conspiracy theory claiming that a voting machine company had worked with an election software firm, the financier George Soros and Venezuela to steal the presidential contest from Mr. Trump.But there was a problem for the Trump team, according to court documents released on Monday evening.By the time the news conference occurred on Nov. 19, Mr. Trump’s campaign had already prepared an internal memo on many of the outlandish claims about the company, Dominion Voting Systems, and the separate software company, Smartmatic. The memo had determined that those allegations were untrue.The court papers, which were initially filed late last week as a motion in a defamation lawsuit brought against the campaign and others by a former Dominion employee, Eric Coomer, contain evidence that officials in the Trump campaign were aware early on that many of the claims against the companies were baseless.The documents also suggest that the campaign sat on its findings about Dominion even as Sidney Powell and other lawyers attacked the company in the conservative media and ultimately filed four federal lawsuits accusing it of a vast conspiracy to rig the election against Mr. Trump.According to emails contained in the documents, Zach Parkinson, then the campaign’s deputy director of communications, reached out to subordinates on Nov. 13 asking them to “substantiate or debunk” several matters concerning Dominion. The next day, the emails show, Mr. Parkinson received a copy of a memo cobbled together by his staff from what largely appear to be news articles and public fact-checking services.Even though the memo was hastily assembled, it rebutted a series of allegations that Ms. Powell and others were making in public. It found:That Dominion did not use voting technology from the software company, Smartmatic, in the 2020 election.That Dominion had no direct ties to Venezuela or to Mr. Soros.And that there was no evidence that Dominion’s leadership had connections to left-wing “antifa” activists, as Ms. Powell and others had claimed.As Mr. Coomer’s lawyers wrote in their motion in the defamation suit, “The memo produced by the Trump campaign shows that, at least internally, the Trump campaign found there was no evidence to support the conspiracy theories regarding Dominion” and Mr. Coomer.Read the Trump campaign’s internal memoLast November, communications staff members on the Trump campaign hastily assembled a memo examining outlandish election claims. The memo found that many of the allegations were baseless.Read DocumentEven at the time, many political observers and voters, Democratic and Republican alike, dismissed the efforts by Ms. Powell and other pro-Trump lawyers like Rudolph W. Giuliani as a wild, last-ditch attempt to appease a defeated president in denial of his loss. But the false theories they spread quickly gained currency in the conservative media and endure nearly a year later.It is unclear if Mr. Trump knew about or saw the memo; still, the documents suggest that his campaign’s communications staff remained silent about what it knew of the claims against Dominion at a moment when the allegations were circulating freely.“The Trump campaign continued to allow its agents,” the motion says, “to advance debunked conspiracy theories and defame” Mr. Coomer, “apparently without providing them with their own research debunking those theories.”Eric Coomer, a former Dominion Voting Systems employee, was accused of playing a role in a conspiracy to breach voting machines and reverse the 2020 election’s outcome. Bob Andres/Atlanta Journal-Constitution via Associated PressMr. Coomer, Dominion’s onetime director of product strategy and security, sued Ms. Powell, Mr. Giuliani, the Trump campaign and others last year in state district court in Denver. He has said that after the election, he was wrongly accused by a right-wing podcast host of hacking his company’s systems to ensure Mr. Trump’s defeat and of then telling left-wing activists that he had done so.Soon after the host, Joe Oltmann, made these accusations, they were seized upon and amplified by Ms. Powell and Mr. Giuliani, who were part of a self-described “elite strike force” of lawyers leading the charge in challenging Joseph R. Biden Jr.’s victory.On Nov. 19, for example, Ms. Powell and Mr. Giuliani appeared together at the news conference at the Republican National Committee’s headquarters and placed Mr. Coomer at the center of a plot to hijack the election by hacking Dominion’s voting machines. By Ms. Powell’s account that day, the conspiracy included Smartmatic, Venezuelan officials, people connected to Mr. Soros and a “massive influence of communist money.”Ms. Powell and Mr. Giuliani did not respond to messages seeking comment on the documents. Representatives for Mr. Trump also did not respond to emails seeking comment.Mr. Trump continues to falsely argue that the election was stolen from him, and in recent months Ms. Powell and Mr. Giuliani have stuck by their claims that the election was rife with fraud. A lawyer for Mr. Giuliani said in a court filing last month that at least some of his claims of election fraud were “substantially true.”And as recently as three weeks ago, Ms. Powell told a reporter for the Australian Broadcasting Corporation that the 2020 election was “essentially a bloodless coup where they took over the presidency of the United States without a single shot being fired.”It remains unclear how widely the memo was circulated among Trump campaign staff members. According to the court documents, Mr. Giuliani said in a deposition that he had not seen the memo before he gave his presentation in Washington, and he questioned the motives of those who had prepared it.“They wanted Trump to lose because they could raise more money,” Mr. Giuliani was quoted as saying in the deposition.Trump’s Bid to Subvert the ElectionCard 1 of 4A monthslong campaign. More

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      Dominion Accuses Newsmax and One America News of Defamation in Suit

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      Dominion Voting Systems, an election technology company that became a target of a baseless pro-Trump conspiracy theory about rigged voting machines, sued the right-wing television networks Newsmax and One America News on Tuesday, accusing them of defamation.Dominion, which also sued Fox News this year, argued in the filings that both channels served as platforms for flagrant falsehoods that devastated its reputation.“The defendants named show no remorse, nor any sign they intend to stop spreading disinformation,” Dominion’s chief executive, John Poulos, said in a statement. “We have no choice but to seek to hold those responsible to account.”Dominion is seeking $1.6 billion in damages from each network. The company also sued Patrick Byrne, the former chief executive of Overstock.com, who has publicly accused Dominion of rigging votes to ensure that President Donald J. Trump would not be re-elected. Mr. Byrne also falsely portrayed Dominion as linked to Hugo Chávez, the long-dead Venezuelan president.Dominion had previously sued Mr. Trump’s lawyers Rudolph Giuliani and Sidney Powell for defamation, along with Mike Lindell, the chief executive of MyPillow and another Trump partisan who has relentlessly spread conspiracy theories about the 2020 election. Fox News has filed a motion to dismiss the Dominion suit.Newsmax, which is owned by Christopher Ruddy, a Trump confidant, responded in a statement on Tuesday: “Newsmax simply reported on allegations made by well-known public figures, including the president, his advisers and members of Congress. Dominion’s action today is a clear attempt to squelch such reporting and undermine a free press.”Representatives for One America News did not immediately respond to a request for comment. More

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      Fox News Files to Dismiss Dominion's Lawsuit Over 2020 Election Coverage

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      Fox News Media, the Rupert Murdoch-controlled cable group, filed a motion on Tuesday to dismiss a $1.6 billion defamation lawsuit brought against it in March by Dominion Voting Systems, an election technology company that accused Fox News of propagating lies that ruined its reputation after the 2020 presidential election.The Dominion lawsuit and a similar defamation claim brought in February by another election company, Smartmatic, have been widely viewed as test cases in a growing legal effort to battle disinformation in the news media. And it is another byproduct of former President Donald J. Trump’s baseless attempts to undermine President Biden’s clear victory.In a 61-page response filed in Delaware Superior Court, the Fox legal team argues that Dominion’s suit threatened the First Amendment powers of a news organization to chronicle and assess newsworthy claims in a high-stakes political contest.“A free press must be able to report both sides of a story involving claims striking at the core of our democracy,” Fox says in the motion, “especially when those claims prompt numerous lawsuits, government investigations and election recounts.” The motion adds: “The American people deserved to know why President Trump refused to concede despite his apparent loss.”Dominion’s lawsuit against Fox News presented the circumstances in a different light.Dominion is among the largest manufacturers of voting machine equipment and its technology was used by more than two dozen states last year. Its lawsuit described the Fox News and Fox Business cable networks as active participants in spreading a false claim, pushed by Mr. Trump’s allies, that the company had covertly modified vote counts to manipulate results in favor of Mr. Biden. Lawyers for Mr. Trump shared those claims during televised interviews on Fox programs.“Lies have consequences,” Dominion’s lawyers wrote in their initial complaint. “Fox sold a false story of election fraud in order to serve its own commercial purposes, severely injuring Dominion in the process.” The lawsuit cites instances where Fox hosts, including Lou Dobbs and Maria Bartiromo, uncritically repeated false claims about Dominion made by Mr. Trump’s lawyers Rudolph W. Giuliani and Sidney Powell.A representative for Dominion, whose founder and employees received threatening messages after the negative coverage, did not respond to a request for comment on Tuesday night.Fox News Media has retained two prominent lawyers to lead its defense: Charles Babcock, who has a background in media law, and Scott Keller, a former chief counsel to Senator Ted Cruz, Republican of Texas. Fox has also filed to dismiss the Smartmatic suit; that defense is being led by Paul D. Clement, a former solicitor general under President George W. Bush.“There are two sides to every story,” Mr. Babcock and Mr. Keller wrote in a statement on Tuesday. “The press must remain free to cover both sides, or there will be a free press no more.”The Fox motion on Tuesday argues that its networks “had a free-speech right to interview the president’s lawyers and surrogates even if their claims eventually turned out to be unsubstantiated.” It argues that the security of Dominion’s technology had been debated in prior legal claims and media coverage, and that the lawsuit did not meet the high legal standard of “actual malice,” a reckless disregard for the truth, on the part of Fox News and its hosts.Media organizations, in general, enjoy strong protections under the First Amendment. Defamation suits are a novel tactic in the battle over disinformation, but proponents say the strategy has shown some early results. The conservative news outlet Newsmax apologized last month after a Dominion employee, in a separate legal case, accused the network of spreading baseless rumors about his role in the election. Fox Business canceled “Lou Dobbs Tonight” a day after Smartmatic sued Fox in February and named Mr. Dobbs as a co-defendant.Jonah E. Bromwich More

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      Smartmatic says disinformation on Fox News about the election was ‘no accident.’

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      The election technology company Smartmatic pushed back on Monday against Fox News’s argument that it had covered the aftermath of the 2020 presidential election responsibly, stating that Fox anchors had played along as guests pushed election-related conspiracy theories.“The First Amendment does not provide the Fox defendants a get-out-of-jail-free card,” Smartmatic’s lawyer, J. Erik Connolly, wrote in a brief filed in New York State Supreme Court. “The Fox defendants do not get a do-over with their reporting now that they have been sued.”The brief came in response to motions filed by Fox Corporation and three current and former Fox hosts — Maria Bartiromo, Jeanine Pirro and Lou Dobbs — to dismiss a Smartmatic lawsuit accusing them of defamation.Smartmatic and another company, Dominion Voting Systems, became the focus of baseless conspiracy theories after the Nov. 4 election that they had manipulated vote totals in contested states. Those conspiracy theories were pushed by Rudolph W. Giuliani and Sidney Powell, serving as personal lawyers to former President Donald J. Trump, on Fox News, Mr. Trump’s longtime network of choice. Smartmatic, which says that the conspiracy theories destroyed its reputation and its business, provided election technology in only one county during the election.Last month, Dominion also sued Fox News. Together, the two suits represent a billion-dollar challenge to the Fox empire, which, after Smartmatic filed its lawsuit, canceled the Fox Business program hosted by Mr. Dobbs.“The filing only confirms our view that the suit is meritless and Fox News covered the election in the highest tradition of the First Amendment,” the network said in a statement late Monday.Fox’s motion, as well as those of its anchors, argued that the mentions of Smartmatic were part of its reporting on a newsworthy event that it was duty-bound to cover: A president’s refusal to concede an election and his insistence that his opponent’s victory was not legitimate.But the response Smartmatic filed on Monday, which runs for 120 pages, said that argument amounted to wishful thinking and that Fox had not covered the claims about Smartmatic objectively or fairly.“The Fox defendants wedded themselves to Giuliani and Powell during their programs,” the brief said. “They cannot distance themselves now.”Fox will have several weeks to respond to the brief, and a judge will eventually consider whether to allow Smartmatic’s case to proceed. More

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      I Used to Think the Remedy for Bad Speech Was More Speech. Not Anymore.

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      I used to believe that the remedy for bad speech is more speech. Now that seems archaic. Just as the founders never envisioned how the right of a well-regulated militia to own slow-loading muskets could apply to mass murderers with bullet-spewing military-style semiautomatic rifles, they could not have foreseen speech so twisted to malevolent intent as it is now.Cyber-libertarianism, the ethos of the internet with roots in 18th-century debate about the free market of ideas, has failed us miserably. Well after the pandemic is over, the infodemic will rage on — so long as it pays to lie, distort and misinform.Just recently, we saw the malignancies of our premier freedoms on display in the mass shooting in Boulder, Colo. At the center of the horror was a deeply disturbed man with a gun created for war, with the capacity to kill large numbers of humans, quickly. Within hours of the slaughter at the supermarket, a Facebook account with about 60,000 followers wrote that the shooting was fake — a so-called false flag, meant to cast blame on the wrong person.So it goes. Toxic misinformation, like AR-15-style weapons in the hands of men bent on murder, is just something we’re supposed to live with in a free society. But there are three things we could do now to clean up the river of falsities poisoning our democracy.First, teach your parents well. Facebook users over the age of 65 are far more likely to post articles from fake news sites than people under the age of 30, according to multiple studies.Certainly, the “I don’t know it for a fact, I just know it’s true” sentiment, as the Bill Maher segment has it, is not limited to seniors. But too many older people lack the skills to detect a viral falsity.That’s where the kids come in. March 18 was “MisinfoDay” in many Washington State high schools. On that day, students were taught how to spot a lie — training they could share with their parents and grandparents.Media literacy classes have been around for a while. No one should graduate from high school without being equipped with the tools to recognize bogus information. It’s like elementary civics. By extension, we should encourage the informed young to pass this on to their misinformed elders.Second, sue. What finally made the misinformation merchants on television and the web close the spigot on the Big Lie about the election were lawsuits seeking billions. Dominion Voting Systems and Smartmatic, two election technology companies, sued Fox News and others, claiming defamation.“Lies have consequences,” Dominion’s lawyers wrote in their complaint. “Fox sold a false story of election fraud in order to serve its own commercial purposes, severely injuring Dominion in the process.”In response to the Smartmatic suit, Fox said, “This lawsuit strikes at the heart of the news media’s First Amendment mission to inform on matters of public concern.” No, it doesn’t. There is no “mission” to misinform.The fraudsters didn’t even pretend they weren’t peddling lies. Sidney Powell, the lawyer who was one of the loudest promoters of the falsehood that Donald Trump won the election, was named in a Dominion lawsuit. “No reasonable person would conclude that the statements were truly statements of fact,” her lawyers wrote, absurdly, of her deception.Tell that to the majority of Republican voters who said they believed the election was stolen. They didn’t see the wink when Powell went on Fox and Newsmax to claim a massive voter fraud scheme.Dominion should sue Trump, the man at the top of the falsity food chain. The ex-president has shown he will repeat a lie over and over until it hurts him financially. That’s how the system works. And the bar for a successful libel suit, it should be noted, is very high.Finally, we need to dis-incentivize social media giants from spreading misinformation. This means striking at the algorithms that drive traffic — the lines of code that push people down rabbit holes of unreality.The Capitol Hill riot on Jan. 6 might not have happened without the platforms that spread false information, while fattening the fortunes of social media giants.“The last few years have proven that the more outrageous and extremist content social media platforms promote, the more engagement and advertising dollars they rake in,” said Representative Frank Pallone Jr., chairman of the House committee that recently questioned big tech chief executives.Taking away their legal shield — Section 230 of the Communications Decency Act — is the strongest threat out there. Sure, removing social media’s immunity from the untruthful things said on their platforms could mean the end of the internet as we know it. True. But that’s not necessarily a bad thing.So far, the threat has been mostly idle — all talk. At the least, lawmakers could more effectively use this leverage to force social media giants to redo their recommendation algorithms, making bogus information less likely to spread. When YouTube took such a step, promotion of conspiracy theories decreased significantly, according to researchers at the University of California, Berkeley, who published their findings in March 2020.Republicans may resist most of the above. Lies help them stay in power, and a misinformed public is good for their legislative agenda. They’re currently pushing a wave of voter suppression laws to fix a problem that doesn’t exist.I still believe the truth may set us free. But it has little chance of surviving amid the babble of orchestrated mendacity.Timothy Egan (@nytegan) is a contributing opinion writer who covers the environment, the American West and politics. He is a winner of the National Book Award and author, most recently, of “A Pilgrimage to Eternity.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More