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• The aftershocks of the 2020 presidential election continue to reverberate in politics and the media, building to an crescendo in a high-profile defamation lawsuit.
• The trial is slated to begin the week of April 16, 2023, in the case of U.S. Dominion, Inc. v. Fox News Network.
• The lawsuit rests on whether false claims Fox hosts and their guests made about Dominion’s voting machines after President Joe Biden was elected were defamatory.
• Fox News hosts said on air that that there were “voting irregularities” with Dominion’s voting machines – while privately saying that such claims were baseless.

Understanding defamation

• Defamation happens when someone publishes or publicly broadcasts falsehoods about a person or a corporation in a way that harms their reputation to the point of damage.
• Defamation plaintiffs can be private, ordinary people who must prove the reporting was done with negligence to win their suit.
• The ultimate defense against defamation is truth, but there are others.

Proving actual malice

• The primary question for the jury will be whether Fox broadcasters knew the statements were false when they aired them.
• If they did, it would mean they acted with actual malice, the standard required to prove a case of defamation for a public person, entity or figure.
• The U.S. Supreme Court established actual malice as a legal criterion of defamation in 1964 when L.B.
• Sullivan, a police commissioner in Alabama, felt his reputation had been harmed by a civil rights ad run in The New York Times that contained several inaccuracies.

Why proving defamation is so hard

• It is incredibly hard to prove in court that someone set out do harm in publishing facts that are ultimately proved to be untrue.
• Most times, falsehoods in a story are the result of insufficient information at the time of reporting.
• This happened when Rolling Stone magazine published an article in 2014 about the gang rape of a student at the University of Virginia.

Not meeting the malice standard

• There are also some recent examples of a defamation lawsuit’s not meeting the actual malice standard.
• The jury said the information might be inaccurate, but she had not proved actual malice standard.
• It is so difficult for public figures to meet the actual malice standard and prove defamation that most defamation defendants spend most of their legal preparation time trying to prove they are not actually in the public eye.

Defamation cases that went ahead

• Some public figures, however, have prevailed in proving defamation.
• Most recently, Cardi B won a defamation lawsuit against a celebrity news blogger who posted videos falsely stating the Grammy-winning rapper used cocaine, had herpes and took part in prostitution.

The case of Dominion

• Whether Dominion can prove actual malice is up for the jury to decide, but Fox pundits have helped the plaintiff’s case by acknowledging they knew information was false before they aired it and leaving a copious trail of comments such as, “this dominion stuff is total bs.” Fox’s position is that despite knowing claims made by guests about Dominion were false, the claims were newsworthy.
• The decision could send quivers through the political media landscape for years to come.