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      Analysis: Fox News’s $787.5 Million Settlement Is the Cost of Airing a Lie

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      Fox News’s late-stage agreement with Dominion Voting Systems came with a rare acknowledgment of broadcasting false claims by the conservative media powerhouse.In settling with Dominion Voting Systems, Fox News has avoided an excruciating, drawn-out trial in which its founding chief, Rupert Murdoch, its top managers and its biggest stars would have had to face hostile grilling on an embarrassing question: Why did they allow a virulent and defamatory conspiracy theory about the 2020 election to spread across the network when so many of them knew it to be false?But the $787.5 million settlement agreement — among the largest defamation settlements in history — and Fox’s courthouse statement recognizing that the court had found “certain claims about Dominion” aired on its programming “to be false” — at the very least amount to a rare, high-profile acknowledgment of informational wrongdoing by a powerhouse in conservative media and America’s most popular cable network.“Money is accountability,” Stephen Shackelford, a Dominion lawyer, said outside the courthouse, “and we got that today from Fox.”During a news conference, a lawyer for Dominion Voting Systems said, “lies have consequences.”Pete Marovich for The New York TimesThe terms of the agreement, which was abruptly announced just before lawyers were expected to make opening statements, did not require Fox to apologize for any wrongdoing in its own programming — a point that Dominion was said to have been pressing for.Shortly after the agreement was reached, Fox said it was “hopeful that our decision to resolve this dispute with Dominion amicably, instead of the acrimony of a divisive trial, allows the country to move forward from these issues.”The settlement carries an implicit plea of “no contest” to several pretrial findings from the presiding judge in the case, Eric M. Davis, that cast Fox’s programming in exceptionally harsh light. In one of those findings, the judge sided with Dominion in its assertion that Fox could not claim that its airing of the conspiracy theory — generally relating to the false claim that its machines “switched” Trump votes into Biden votes — fell under a legally protected status of “news gathering” that can shield news organizations when facts are disputed. The judge wrote, “the evidence does not support that FNN conducted good-faith, disinterested reporting.”In another finding, the judge wrote that the “evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true.”Through those findings, the judge seriously limited Fox’s ability to argue that it was acting as a news network pursuing the claims of a newsmaker, in this case, the president of the United States, who was the lead clarion for the false Dominion narrative.In those heady days before the first day of trial, Fox had been indicating that if it were to lose at trial, it would work up an appeal that would, at least partly, argue with those judicial rulings. Now they stand undisputed. By the end of the day on Tuesday, it was clear that Fox’s lawyers were engaged in an urgent calculus to take the financial hit rather than risk losing at trial. As so many legal experts before the trial had argued, Dominion had managed to collect an unusual amount of internal documentation from Fox showing that many inside the company knew the Dominion election conspiracy theory was pure fantasy. That extended to the network’s highest ranks — right up to Mr. Murdoch himself.Rupert Murdoch and his lieutenants could have faced a drawn-out trial that would have forced them to acknowledge why they broadcast conspiratorial claims that knew to be false.Mary Altaffer/Associated PressThat evidence appeared to bring Dominion close to the legal threshold in defamation cases known as “actual malice” — established when defamatory statements are “made with knowledge of its falsity or with reckless disregard of whether it was true or not.” (That bar, however, is not always easy to meet, and there are no guarantees in front of a jury.)“Dominion Voting had elicited much critical evidence that Fox had acted with actual malice or reckless disregard for the truth, which it could have proved to a jury, so the only question remaining would have been damages,” said Carl Tobias, a law professor at the University of Richmond. “Trial of the case also might have undermined the reputation of Fox when the evidence was presented in open court.”It was less surprising that Fox settled than that it did so at such a late stage on Tuesday. A trial would have seen Fox News personnel and Mr. Murdoch parrying with lawyers over the knowledge of falsity they held and why they did not take any action to stop it. The answers would have further unmasked the internal modus operandi of an organization that has long guarded its internal operations.The one question that only time will answer is whether the settlement was enough to cause Fox News to change the way it handles such incendiary and defamatory conspiracy content. The amount is huge — $787.5 million. Fox News certainly doesn’t want to see a similar settlement anytime soon as other legal cases loom, notably a $2.7 billion suit from another election technology company, Smartmatic.But Fox did manage to escape Dominion’s goal of an on-air admission or apology, meaning it did not have to force either on its audience, which did not hear much about the case on Fox’s shows to begin with.“It’s hard to say how damaging a decision against Fox would have been for the company beyond the financial cost of the verdict because their audience is very loyal and bought into the polarized perspective their opinion hosts present,” Michelle Simpson Tuegel, a trial lawyer, said in a statement. “But the reputational harm of having executives, including Chairman Rupert Murdoch, and hosts take the stand seems to have moved the parties towards a resolution.” More

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      Fox Will Pay $787.5 Million to Settle Dominion Defamation Suit

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      The settlement with Dominion Voting Systems was the latest extraordinary twist in a case that exposed the inner workings of the most powerful voice in conservative news.Fox News abruptly agreed on Tuesday to pay $787.5 million to resolve a defamation suit filed by Dominion Voting Systems over the network’s promotion of misinformation about the 2020 election, averting a lengthy and embarrassing trial just as a packed courtroom was seated in anticipation of hearing opening statements.The settlement, one of the largest ever in a defamation case, was the latest extraordinary twist in a case that has been full of remarkable disclosures that exposed the inner workings of the most powerful voice in conservative news.In addition to the huge financial price, Dominion exacted a difficult admission from Fox News, which acknowledged in a statement that “certain claims” it made about Dominion were false.“The truth matters. Lies have consequences,” Justin Nelson, a lawyer for Dominion, said outside Delaware Superior Court on Tuesday.“Lies have consequences,” a lawyer for Dominion Voting Systems said during a news conference.Pete Marovich for The New York TimesNews of the 11th-hour agreement stunned the full courtroom in Wilmington, where the case was being heard. Gasps filled the air when Judge Eric M. Davis told the jury shortly before 4 p.m. that the two parties had resolved the matter. Lawyers for both sides had been preparing to speak to the jury for the first time, microphones clipped to their jacket lapels.The settlement spares Fox a trial that would have gone on for weeks and put many of the company’s most prominent figures — from the media mogul Rupert Murdoch to hosts like Tucker Carlson and Maria Bartiromo — on the stand.The case held the potential to make public a stream of damaging information about how the network told its audience a story of fraud and interference in the 2020 presidential election that many of its own executives and on-screen personalities did not believe. And the network was not forced to apologize — a concession that Dominion lawyers had sought, lawyers involved in the case said.Dominion sued two years ago, after Fox aired false stories claiming that Dominion’s voting machines were susceptible to hacking and had flipped votes from President Donald J. Trump to Joseph R. Biden Jr. On Tuesday, the company expressed a sense of exoneration about the large financial cost that Fox will have to pay. While Dominion’s suit asked for damages of $1.6 billion, almost double the settlement figure, the company will avoid many years of appeals that could have trimmed or eliminated any payout from a trial.“Over two years ago, a torrent of lies swept Dominion and election officials across America into an alternative universe of conspiracy theories causing grievous harm to Dominion and the country,” Mr. Nelson said. “Today’s settlement of $787.5 million represents vindication and accountability.”The case and the expected trial were significant because they raised the prospect for an elusive judgment in the post-Trump era: Very few allies of the former president’s have been held legally accountable for their roles in spreading the falsehoods that undermined confidence in the country’s democratic process and cast Mr. Biden’s victory as illegitimate. Polls show that large numbers of Republicans still believe the 2020 election was tainted.The size of the settlement, experts said, seems to have little precedent. RonNell Andersen Jones, a professor of law at the S.J. Quinney College of Law at the University of Utah, said she believed it was one of the largest settlements in a defamation case ever.“This was unquestionably the strongest defamation case we’ve ever seen against a major media company,” Ms. Andersen Jones said. The case was even more unusual, she added, because media companies typically seek to settle well before so much damaging information about their internal workings is released.A deal came together at the last possible minute, after months of almost no serious discussion between the two sides. As the case proceeded, Dominion divulged extraordinary details about the doubts that Fox employees expressed privately about voter fraud claims, even as they struck a different tone on the air.“Settlement before this trove of evidence became public would of course have been in Fox’s best interest,” Ms. Andersen Jones said. “Waiting until the eve of trial, when the whole nation had a chance to focus on what Fox said internally about Trump, its sources and its own viewers, gave Dominion the extra layer of accountability it was seeking.”It is uncommon for defamation suits to get to trial, in part because the bar for proving “actual malice” — the legal standard that requires plaintiffs to show that defendants knew what they were saying was a lie, or had a reckless disregard for the truth — is so high. It is rarer yet for one to feature the volume of evidence that Dominion had amassed against Fox.In the run-up to trial, Dominion publicly released reams of internal communications among Fox executives, hosts and producers that revealed how the country’s most-watched cable news network set in motion a strategy to win back viewers who had tuned out after Mr. Trump’s loss. The messages tell the story of a frantic scramble inside Fox as it started losing audience share to competitors, like Newsmax, that were more willing to report on and endorse false claims about a plot involving Dominion machines to steal the election from Mr. Trump.Producers referred to pro-Trump guests like Sidney Powell and Rudolph W. Giuliani as “gold” for ratings and acknowledged that the audience didn’t want to hear about subjects like the possibility of a peaceful transition from a Trump administration to a Biden administration.Those communications have shown how employees at Fox expressed serious doubts about and, at times, were scornful of Mr. Trump and his allies as they spread lies about voter fraud, questioning the legitimacy of Mr. Biden’s election. Some at Fox mocked Mr. Trump and his lawyers as “crazy” and under the influence of drugs like L.S.D. and magic mushrooms.Some Fox hosts privately described their colleagues as “reckless” for endorsing Mr. Trump’s false claims, acknowledging that there was “no evidence” to back them up. Yet for weeks, Fox continued to give a platform to election deniers, despite doubts about their credibility. Dominion challenged statements made on multiple programs on multiple nights. Typically, defamation cases involve only a single disputed statement.The trial would have been a spectacle. Mr. Murdoch, whose family controls the Fox media empire, was slated to be one of Dominion’s first witnesses this week. Star anchors including Sean Hannity, Mr. Carlson and Ms. Bartiromo were likely to be called at other points.Even the most blockbuster media trials of the last generation — Ariel Sharon’s suit against Time and Gen. William C. Westmoreland’s against CBS, both in the 1980s — lacked the most explosive elements of this case, which raised weighty questions about the protections the First Amendment affords the media and whether one of the most influential forces in conservative politics would have to pay a price for amplifying misinformation.Both of those cases were settled out of court, too.In recent days, Fox raised questions about Dominion’s claims of damages. On Monday, it disputed Dominion’s worth, pointing to a recent legal filing in which the company lowered part of its request for compensation. Fox lawyers also raised doubts about the harm that Dominion had suffered, saying the company acknowledged that it had turned a profit in recent years.But the potential pitfalls for proceeding with a trial were real for Fox. Some of the revelations from the depositions that Dominion had conducted offered a preview of how damaging a trial could be. Mr. Murdoch acknowledged during his deposition that some Fox hosts had “endorsed” Mr. Trump’s lies, an admission that undercut Fox’s defense that it was merely reporting on — not amplifying — the former president’s claims.After the deposition concluded, the general counsel of Fox Corporation, Viet Dinh, tried to reassure Mr. Murdoch that he had done well.“I’m just going to say it. They didn’t lay a finger on you,” Mr. Dinh said.Mr. Murdoch disagreed, according to a person who witnessed the exchange. He pointed a finger at the lawyer who had questioned him for Dominion, Mr. Nelson, and said, “I think he would strongly disagree with that.”To which Mr. Nelson replied, “Indeed, I do.” More

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      Another Texas Election Official Quits After Threats From Trump Supporters

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      Heider Garcia, the top election official in deep-red Tarrant County, had previously testified about being harassed by the former president’s right-wing supporters.Heider Garcia, the head of elections in Tarrant County, Texas, announced this week that he would resign after facing death threats, joining other beleaguered election officials across the nation who have quit under similar circumstances.Mr. Garcia oversees elections in a county where, in 2020, Donald J. Trump became only the second Republican presidential candidate to lose in more than 50 years. Right-wing skepticism of the election results fueled threats against him, even though the county received acclaim from state auditors for its handling of the 2020 voting. Why it’s importantWith Mr. Trump persistently repeating the lie that he won the 2020 election, many of his supporters and those in right-wing media have latched on to conspiracy theories and joined him in spreading disinformation about election security. Those tasked with running elections, even in deeply Republican areas that did vote for Mr. Trump in 2020, have borne the brunt of vitriol and threats from people persuaded by baseless claims of fraud.The threats made against himMr. Garcia detailed a series of threats as part of his written testimony last year to the Senate Judiciary Committee, which he urged to pass better protections for election officials.One of the threats made online that he cited: “hang him when convicted from fraud and let his lifeless body hang in public until maggots drip out his mouth.”He testified that he had repeatedly been the target of a doxxing campaign, including the posting of his home address on Twitter after Sidney Powell, a lawyer for Mr. Trump, falsely accused him on television and social media of manipulating election results.Mr. Garcia also testified that he received direct messages on Facebook with death threats calling him a “traitor,” and one election denier used Twitter to urge others to “hunt him down.”Heider Garcia’s backgroundMr. Garcia, whose political affiliation is not listed on public voting records, has overseen elections in Tarrant County since 2018. Before that, he had a similar role outside Sacramento in Placer County, Calif.He did not immediately respond to a request for comment on Tuesday.Election deniers have fixated on Mr. Garcia’s previous employment with Smartmatic, an election technology company that faced baseless accusations of rigging the 2020 election and filed a $2.7 billion defamation lawsuit against Fox News that is similar to one brought by the voting machine company Dominion, which was settled on Tuesday. He had several roles with Smartmatic over more than a dozen years, ending in 2016, according to his LinkedIn profile. His work for the company in Venezuela, a favorite foil of the right wing because of its troubled socialist government, has been a focus of conspiracy theorists.What he said about the threats“I could not sleep that night, I just sat in the living room, until around 3:00 a.m., just waiting to see if anyone had read this and decided to act on it.”— From Mr. Garcia’s written testimony last year, describing the toll that the posting of his address online, along with other threats, had taken on him and his family.Other election officials who have quitAll three election officials resigned last year in another Texas county, Gillespie — at least one of whom cited repeated death threats and stalking.A rural Virginia county about 70 miles west of Richmond lost its entire elections staff this year after an onslaught of baseless voter fraud claims, NBC News reported.Read moreElection officials have resorted to an array of heightened security measures as threats against them have intensified, including hiring private security, fireproofing and erecting fencing around a vote tabulation center.The threats have led to several arrests by a Justice Department task force that was created in 2021 to focus on attempts to intimidate election officials. More

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      Fox-Dominion Trial Delayed: What to Know About the Company Behind the Lawsuit

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      Dominion, which is owned by a New York private equity firm, has accused the news network of spreading false narratives about its election technology.If not for the 2020 election, most people would not have heard of Dominion Voting Systems, an elections technology company that John Poulos started out of his basement in Canada more than two decades ago.But in the days and weeks after the election, former President Donald J. Trump and many of his allies accused the company of perpetrating election fraud. Dominion then filed a slew of defamation lawsuits against public figures and news networks, accusing them of spreading the false narratives and exposing its employees to harassment. The company’s case against Fox News is scheduled to go to trial this week. Judge Eric M. Davis, who is presiding over the case, said in a statement late on Sunday that he was delaying the trial by a day, until Tuesday. He did not cite a reason but said he would make an announcement Monday at 9 a.m.Here is what we know about the company, from its private equity owner in New York to its powerful perch in the nation’s elections industry.Dominion’s Early DaysDominion became one of the largest providers of election technology in the United States by selling, licensing and maintaining products such as its Democracy Suite software and ImageCast voting and tabulation machines. During the 2020 election, the company served 28 states, including many swing states, as well as Puerto Rico. Mr. Poulos, who has degrees in electrical engineering and business, incorporated Dominion in Toronto in 2003 with some friends after a stint in Silicon Valley. His sister was his first investor, followed by his parents and his friends’ parents. (Dominion declined to comment for this article.)The company is named after Canada’s 1920 Dominion Elections Act, which removed barriers to voting that had excluded women and voters of certain racial, religious or economic groups. Mr. Poulos’s business idea was to help people with disabilities, such as paralysis or blindness, cast their ballots as independently as possible while still leaving an auditable paper trail. Dominion incorporated accessible technology like audio readouts and large screens into election machines.The company scored its first American contract in 2009, providing voting technology to dozens of counties in New York. The next year, it moved its headquarters to Denver, where it now has several hundred employees.Private Equity OwnersStaple Street Capital, a private equity firm in New York, is the majority owner of Dominion. Mr. Poulos, Dominion’s chief executive, retains a roughly 12 percent stake. PennantPark Investment, a financial firm based in Miami, is another investor.Fox said in a legal filing that Staple Street paid $38.3 million in 2018 to acquire 76.2 percent of Dominion. At the time, the private equity firm valued the technology vendor at $80 million, or one-twentieth of the $1.6 billion in damages that Dominion had sought from Fox, according to Fox’s filing.Staple Street’s owners, Stephen D. Owens and Hootan Yaghoobzadeh, first worked together in 1998 on buyouts for the Carlyle Group, a private equity giant. (Their résumés also feature stints at Lehman Brothers and Cerberus Capital Management.) The firm’s board of directors includes a former chief executive of Dunkin’ Brands as well as a former chairman of the Federal Communications Commission and ambassador to the European Union.Staple Street declined to comment.On its website, Staple Street says it has $900 million of assets under management — mostly midsize companies such as a flower bulb distributor in New Jersey, an accounting and payroll reporting service popular with restaurant chains, a support organization for dental clinics and, at one point, the theme park operator Six Flags.Fox said in its filing that Mr. Yaghoobzadeh had authorized Dominion’s lawsuit against the network. The lawsuit, Fox said, is meant to generate publicity, deter negative reporting and “unjustly enrich” Staple Street.Fox cited discovery documents that it said showed Dominion “in a solid financial position, maintaining substantial cash, carrying no debt and producing a steady return on investment” to Staple Street. In 2021, Dominion paid full bonuses to its employees and executives and projected $98 million in revenue for 2022, Fox said.Last year, when asked whether he believed that Dominion was a “toxic” company after the 2020 election, Mr. Owens answered, “That’s correct.”A Business in FluxIn its complaint, which it filed in 2021, Dominion accused Fox of broadcasting lies that “deeply damaged” its “once-thriving” business, “one of the fastest-growing technology companies in North America” with a potential value of more than $1 billion.Shasta County, a rural area in Northern California that has become a hotbed for election denial, terminated its Dominion contract in January. Lawmakers in Montgomery County in Pennsylvania renewed a deal with Dominion for $518,052 in February, the same month that officials in Kern County, north of Los Angeles, narrowly approved a three-year, $672,948 contract after hours of heated debate.Dominion’s contracts with local and state governments typically last for several years and range from tens of thousands of dollars to more than $100 million, the company said in its complaint against Fox. The company estimated that misinformation about the company had cost it more than $600 million in profits.In an expert witness report submitted in the case late last year, Mark J. Hosfield, a managing director of the investment bank and advisory firm Stout, wrote that the false narratives had led Dominion to lose $88 million in profits from current and future opportunities. He also wrote that Fox’s coverage had caused the value of Dominion’s equity and debt to drop $920.8 million. Dominion’s renewal rate with clients had historically been 90 percent, he said.Fox has said the $1.6 billion that Dominion is seeking is “a staggering figure that has no factual support” and was “pulled out of thin air.” There has been no evidence of Dominion’s laying off employees, closing offices, defaulting on credit obligations or suffering canceled contracts as a result of Fox’s coverage, the network said.Fox said in other court filings last year that “Dominion’s calculations are riddled with mathematical overstatements” and losses misattributed to damaging news coverage, and that the company had beaten revenue forecasts that it set before the election.“Dominion’s lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights,” Fox said in a statement.Dominion, in a statement said: “In the coming weeks, we will prove Fox spread lies causing enormous damage to Dominion. We look forward to trial.”An Important but Mysterious IndustryThe elections technology industry has few major players and offers little public information about its finances. Dominion is most likely the second-largest company of its kind operating in the United States, behind Election Systems & Software in Nebraska, according to Verified Voting, an election security nonprofit.Both companies, along with Hart InterCivic in Texas, have acquired smaller competitors over the past two decades. As of 2016, the three vendors served more than 90 percent of eligible voters in the country, according to a report from the Wharton School at the University of Pennsylvania.Wharton researchers at that point described the election technology business as having “all the aspects of an industry that new investors would want to avoid — a costly regulatory environment, constrained market size, cost-conscious customers, and concentrated and entrenched vendors.”The Brennan Center for Justice estimated last year that replacing outdated voting equipment over the next five years could cost more than $580 million. A group of Democratic lawmakers, including Senator Elizabeth Warren of Massachusetts, sent letters in 2019 to Staple Street and other private equity firms that had invested in election technology companies, voicing concern about industry consolidation and the maintenance of voting machines. In response, Staple Street wrote to Ms. Warren that it spent roughly 10 to 20 percent of its revenue on research and development.Susan C. Beachy More

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      Judge Delays Fox and Dominion Trial by a Day

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      Opening statements in the $1.6 billion defamation case against Fox News were set to begin on Monday.A Delaware judge on Monday said that he had delayed by a day the start of a highly anticipated defamation trial over the spread of misinformation in the 2020 presidential election.The postponement of the trial was the latest twist in the case. Late Sunday, Judge Eric M. Davis said the proceedings would continue on Tuesday. He did not give a reason then or in his brief remarks from the bench just after 9 a.m. on Monday.“This does not seem unusual to me,” Judge Davis said, explaining that he had rarely been part of a trial that did not have some kind of delay. “I am continuing the matter until tomorrow.”The case has opened an unprecedented window into the inner workings of the country’s leading conservative news network. In the run-up to trial, Fox has handed over tens of thousands of emails and text messages exchanged among its hosts, producers and executives. Many of them revealed that there was widespread doubt inside the network over former President Donald J. Trump’s false claims that he had been cheated of victory.The case is considered a landmark test of First Amendment protections for the press and has been closely watched by legal and media analysts. Dominion’s voting machines became the focus of pro-Trump conspiracy theories that wrongly implicated the company’s technology in a plot to flip votes from Mr. Trump to President Biden.On Monday, the courtroom was filled with reporters from around the world awaiting word on when they could expect to hear opening statements from both parties and exactly what the delay was about.Boldface names from Fox News — hosts including Tucker Carlson, Sean Hannity and Maria Bartiromo, along with Rupert Murdoch, whose family controls the sprawling Fox media empire — are expected to testify if the case goes to trial.Dominion Voting Systems, an elections technology company, filed the libel lawsuit against Fox in early 2021, claiming that Fox hosts and guests repeatedly uttered lies about its role in a fictitious plot to steal the election despite knowing the claims, which had been pushed by Mr. Trump and his supporters, were not true.Fox has said that it was reporting on newsworthy allegations involving a presidential election and insisted that its broadcasts were protected under the First Amendment as commentary and news. It has also challenged Dominion’s damages claim, arguing that the company vastly overvalued itself and has not suffered the blows to its business that it says.This is a breaking news story. Check back for updates. More

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      What Protects Fox News In the Dominion Trial Also Protects Our Democracy

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      Fox News, which is defending itself from Dominion Voting Systems’ $1.6 billion lawsuit, is going to trial on Monday in a hole. In an unusual move, the judge has already ruled that on-air statements — those asserting that Dominion’s voting machines played a role in causing Donald Trump to lose the 2020 election — were false. The main task left for the jury is to decide whether Fox made those false statements with what’s known as actual malice.It’s remarkable that Dominion’s suit has gotten this far and may even ultimately prevail, thanks in part to a raft of incredibly damaging Fox emails, text messages and other evidence that show deep internal misgivings about on-air claims about the 2020 election. But proving actual malice is difficult: Dominion must show that Fox News either knew that its reporting was false or entertained serious doubts about the truth of the reporting. This high bar, set by the Supreme Court in 1964, often is insurmountable for plaintiffs.Given the evidence against Fox that already has been made public, it might seem unfair that Dominion continues to face such an uphill battle in this case. But it is a very good thing for our democracy that it is so difficult to prove actual malice.A movement to erode this legal protection has gained steam in recent years, but the main push has not come from Fox critics. Rather, conservatives have characterized the protections as unfairly enabling liberal news outlets to lie. Commentators, politicians, judges and two Supreme Court justices have urged the court to reconsider these protections.The Dominion case demonstrates why this politicization is the wrong course. Overturning nearly six decades of vital First Amendment precedent would not benefit conservatives, liberals or anyone other than those who seek to stifle reporting and criticism with the threat of litigation.Sixty-three years ago, this newspaper ran a full-page advertisement from a civil rights committee that accused Southern officials of mistreating Martin Luther King Jr. and other peaceful protesters. Some statements were untrue. For instance, although the city of Montgomery, Ala., had deployed the police near a local college, the officers did not “ring” the campus, as the ad alleged. L.B. Sullivan, a Montgomery city commissioner who supervised the police, sued The New York Times for defamation, and the all-white jury found against The Times and four Black ministers whose names were on the advertisement and awarded Sullivan $500,000.The Supreme Court in 1964 unanimously overturned that ruling, reasoning that public officials must establish actual malice before recovering defamation damages. Justice William Brennan touted the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The court later expanded this requirement to public-figure defamation plaintiffs.The merits of New York Times v. Sullivan have long been the subject of academic debate, but its survival was not seriously questioned until 2019, when Justice Clarence Thomas called on the court to revisit the decision. He deemed Sullivan and its progeny “policy-driven decisions masquerading as constitutional law.” Two years later, Justice Neil Gorsuch joined Justice Thomas, arguing that the actual malice rule might enable the spread of falsehoods online and on cable news.As the Supreme Court showed last year when it overturned Roe v. Wade, no precedent is entirely safe from reversal, so any supporters of Sullivan should be quite concerned by two justices calling to revisit the case.Sullivan is increasingly under attack. This month, for instance, a Trump-appointed federal judge in Florida took a swipe at the actual malice standard when applying it to rule in favor of CNN in a defamation lawsuit that the lawyer Alan Dershowitz brought against the network. “Policy-based decisions” such as the actual malice rule are best left to elected legislatures, “not to an unelected judge who may be king or queen for a day (or a lifetime),” Judge Raag Singhal wrote. Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit cited the media’s “bias against the Republican Party” in his 2021 call to overturn Sullivan. And at a February round table about the news media, Gov. Ron DeSantis of Florida said the precedent enables the media to “smear” politicians.The actual malice rule protects speakers regardless of politics. It protects CNN and The New York Times. It protects Fox News and Newsmax. The rule gives them the flexibility to investigate, report on and criticize the most powerful people and companies without fearing ruinous liability because of an accidental error. It also protects individual speakers on social media.The precedent does not provide media outlets and other speakers with a blank check to knowingly lie. Actual malice is a high bar, but it is not insurmountable. Dominion has already produced emails and other evidence that Fox employees and executives privately entertained serious doubts about many claims about the election. The jury could well conclude that Fox knew of the statements’ falsity or were sufficiently aware of their probable falsity. But Sullivan gives Fox the opportunity to present this defense rather than automatically becoming liable for every error.Judges who argue that the actual malice rule may not be rooted in the First Amendment gloss over the threat to speech posed by using the power of the government — court judgments — to punish speech.Attacks on Sullivan are attacks on the building blocks of democracy, and they should concern everyone who cares about free speech, regardless of political affiliation. We have seen how the powerful have weaponized weaker defamation laws in other countries. In a December report, UNESCO noted that there has been a global increase in civil defamation lawsuits that often aim “to target journalists who publish content that makes public officials or powerful economic actors uncomfortable.” A 2020 report from the Foreign Policy Center observed that since a right-wing populist party rose to power in Poland in 2015, a Polish daily newspaper had received more than 55 legal threats from “powerful state actors,” state-owned companies and people tied to the ruling party.Fearing such an outcome, Matthew Schafer, a First Amendment lawyer (who represented The Times a number of years ago), and I came up with a backup plan: In a recent law review article, we proposed a federal statute that would codify the actual malice rule and other vital free speech and press protections. While courts and state legislatures would be free to impose even stronger protections, our proposal would prevent a sudden erosion of free speech because of a single Supreme Court opinion.Hopefully, such a plan will be unnecessary and judges will come to again recognize the enduring value of Sullivan. The Dominion trial is an opportunity for the nation to witness how this “profound national commitment” protects all speakers. And it will be in the best interests of conservatives to fight to protect Sullivan rather than to tear it down.Jeff Kosseff is a senior legal fellow at The Future of Free Speech Project and the author of the forthcoming book “Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation.”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

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      Judge Limits Fox’s Options for Defense in Dominion Trial

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      A Delaware judge said Fox News could not argue newsworthiness to defend airing false claims, and limited how Dominion Voting Systems could refer to the Jan. 6 attack.WILMINGTON, Del. — A judge ruled on Tuesday that Fox News could not argue that it broadcast false information about Dominion Voting Systems on the basis that the allegations were newsworthy, limiting a key line of defense for the network as it faces the beginning of a potentially costly defamation trial next week.The judge, Eric M. Davis of Delaware Superior Court, also ruled that Dominion could not refer to the Jan. 6, 2021, assault on the Capitol except in very narrow circumstances, saying he did not want jurors to be prejudiced by events that weren’t relevant to the central question in the case: Did Fox air wild claims about Dominion’s purported involvement in a conspiracy to steal the 2020 presidential election from Donald J. Trump knowing that they were lies?In the first of two days of pretrial hearings, Judge Davis set many of the parameters that will govern how the trial is run, including what kinds of arguments the 12-person jury can hear and what questions lawyers may ask during jury selection to weed out those they believe would not be impartial.The hearing covered matters large and seemingly small, from the application of the First Amendment to how jurors may take notes.Judge Davis said he would allow lawyers to ask potential jurors about their cable news viewing habits and whether they watched Fox News programs — or intentionally avoided them. He will not, however, permit questions about how someone voted.In another ruling, the judge denied a motion from Dominion that sought to limit how Fox lawyers could invoke the First Amendment, leaving the network with some space to argue that the Constitution shields it from liability.The lawsuit, in which Dominion is seeking $1.6 billion in damages, is teeing up a major test of the First Amendment and, depending on the outcome, could renew questions about whether defamation law adequately protects victims of misinformation campaigns.While legal experts have said Dominion’s case is unusually strong, defamation suits are extremely difficult to win because the law essentially requires proof of the defendants’ state of mind. Dominion’s burden will be to convince a jury that people inside Fox acted with actual malice, meaning either that they knew the allegations they broadcast were false but did so anyway, or that they acted so recklessly they overlooked facts that would have proved them wrong.Fox has argued that while it understood many of the claims made by its guests about Dominion were false, they were still worth covering as inherently newsworthy. Fox’s lawyers have taken the position that there is nothing more newsworthy than claims by a former president of the United States that an election wasn’t credible.Judge Eric M. Davis said he would allow lawyers to ask potential jurors about their cable news viewing habits and whether they watched Fox News programs.John Taggart for The New York TimesBut Judge Davis disagreed.“Just because someone is newsworthy doesn’t mean you can defame someone,” he said, referring to pro-Trump lawyers like Sidney Powell and Rudolph W. Giuliani, who appeared repeatedly on Fox News and Fox Business in the weeks after the 2020 election and linked Dominion to various conspiracy theories.The judge admonished Fox’s lawyers, saying they cannot make the argument that the false statements about Dominion came from guests like Ms. Powell and not from Fox hosts. That argument is irrelevant, he said, because the fact remains that Fox is responsible as the broadcaster.Sidney Powell and Rudolph W. Giuliani. The pro-Trump lawyers appeared repeatedly on Fox News and Fox Business in the weeks after the 2020 election and linked Dominion to various conspiracy theories.Jacquelyn Martin/Associated Press“It’s a publication issue, not a who-said-it issue,” he said.Dan K. Webb, a lawyer representing Fox, explained that hosts would testify that they weren’t certain about the truth of the allegations but covered them because the former president and his lawyers said they could prove them.“The hosts will say during that time period, 15, 20 days, they were careful not to repeat the allegation,” Mr. Webb said.Judge Davis responded, “Just because they say it, doesn’t mean it’s true.”It was not the only tense exchange between the judge and Fox lawyers on Tuesday. At one point, a lawyer for Dominion, Justin Nelson, informed Judge Davis that Fox had disclosed only within the last 48 hours that Rupert Murdoch, whose family controls the Fox media empire, had a larger role in Fox News than the company had initially let on.By not acknowledging the extent of Mr. Murdoch’s responsibility for Fox News, the personal communications of his that Dominion could review were “significantly more limited,” Mr. Nelson said.Judge Davis was not pleased. “This is a problem,” he said. “I need to feel comfortable that when you represent something to me that it’s true,” he added.Fox has also made the argument that its actions were not defamatory because many hosts and guests said on the air that there was a lack of convincing evidence that suggested widespread voter fraud.Judge Davis rejected this position, too.“You can’t absolve yourself of defamation by merely putting somebody on at another time to say something different,” he said.In asking for such a large settlement against Fox, Dominion has cited the death threats its employees have received. People have shown up outside its Denver headquarters armed and left voice mail messages threatening to blow up its offices.Judge Davis on Tuesday limited how Dominion can refer to those threats in front of jurors, ruling that it may not mention specific content. He said he did not want to leave jurors with the impression that Fox was responsible for the actions of third parties.The trial begins on Monday, with jury selection expected to wrap up by the end of this week.Before Tuesday, the judge had already ruled that Dominion could compel several high-profile Fox executives and hosts to testify in person, including Mr. Murdoch; Suzanne Scott, the chief executive of Fox News Media; and the Fox News personalities Tucker Carlson, Sean Hannity and Jeanine Pirro. More

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      Fox News Settles Defamation Case With Venezuelan Businessman

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      In a letter to a New York judge, the parties said they had reached a settlement in a case related to claims of voter fraud in the 2020 election, but did not disclose the terms.Fox News and one of its former hosts, Lou Dobbs, have settled a defamation suit with a Venezuelan businessman whom the network linked to voting-system fraud in the 2020 election.In a letter filed on Saturday to a federal judge in the Southern District of New York, the parties said they had reached a confidential settlement, although they did not disclose the terms.“This matter has been resolved amicably by both sides,” a spokesperson for Fox News said in an email. “We have no further comment.”The settlement comes days before jury selection this week in a major case that Fox News is defending. That case, a $1.6 billion defamation lawsuit brought by Dominion Voting Systems, says that Fox News lied about voter fraud in the 2020 election, and that Fox hosts and guests repeatedly made false claims about Dominion machines and their supposed role in a plot to steal the election from President Donald J. Trump in 2020.In that trial, which is expected to begin on April 17, a jury will weigh whether Fox spread false claims about Dominion while knowing that the claims were untrue, and it will determine any damages.“Dominion’s lawsuit is a political crusade in search of a financial windfall,” the Fox spokesperson said.In the case of the Venezuelan businessman, Majed Khalil, Mr. Dobbs and Sidney Powell, a regular guest on Fox News, said on-air and in related Twitter posts that Dominion was using software to flip votes from President Trump to Joseph R. Biden Jr., or to add votes for Mr. Biden.One of the tweets falsely said Mr. Khalil was “the effective ‘COO’ of the election project.” In an earlier complaint, the plaintiffs said neither Fox News nor Mr. Dobbs had reached out to Mr. Khalil for comment.Fox Business canceled Mr. Dobbs’s weekday show in February 2021. More