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You might have missed it, but the most revealing moment of the Dominion/Fox News case that’s been dominating the news cycle didn’t come during discovery. It didn’t come when court filings revealed CEO Suzanne Scott’s angry emails about subscriber losses or Tucker Carlson’s text messages about Donald Trump. It didn’t even come the moment Fox agreed to pony up an eye-watering $787 million to settle Dominion’s claim before going to trial.
No, the most revealing moment of the Dominion saga occurred Tuesday afternoon, when Dominion lawyer Davinda Brook thanked the assembled press for the role they had played in the company’s heist.
Stunning moment in journalistic history.
Dominion attorney gleefully thanks Regime Media for helping defeat Fox News in first amendment trial.pic.twitter.com/ZZ8t4GHhYO
— Citizen Free Press (@CitizenFreePres) April 19, 2023
“Thank you, to all of you, for being with us on this journey,” Brook said to the crowd of reporters. “We appreciate what you’ve done to help us and to help expose what we were able to discover over the course of this process. So thank you and we’ll see you at the next one.”
Brook’s thanks were well-aimed. Every step of the Dominion lawsuit was a collaborative effort between lawyers and an army of press allies. Their objective: the destruction of a rival press outlet they hated, and the remaking of American defamation laws in order to do it.
The rest of the media went on a gloating spree over Fox’s misfortune.
“This is difficult to say with a straight face.” Jake Tapper laughs while reading Fox News’ statement on their “journalistic standards”. (Video: CNN) pic.twitter.com/ddmlxd3tqi
— Mike Sington (@MikeSington) April 18, 2023
This is a momentous evolution in the relationship between the Regime and the American press. It’s also a far cry from, say, the comeuppance Rolling Stone received for its bogus UVA Jackie story eight years ago. The “victim” of Fox’s alleged “defamatory” reporting wasn’t an innocent person, but a subsidiary corporation owned by a large venture capital firm. The amount of damages Fox News was facing, and the amount it consequently had to settle for, was cartoonishly out of proportion to any actual harm inflicted by Fox’s reporting. The scale of these damages, and those being sought in a similar lawsuit by fellow voting machine company Smartmatic, are not about remedying a harm. They are about putting Fox out of business.
And the rest of the press is cheering.
Believe it or not, this is a recent development. In 2009, when the Obama administration tried to squeeze Fox out of the pool of accepted news organizations, it ran into stiff resistance from other press outlets:
Tension between the White House and Fox News continued to mount this week after broadcast bureau chiefs in Washington refused to go along with the Obama’s administration’s attempt to squeeze Fox News out of an interview.
Despite the administration’s pledge to play nice earlier this week, the White House tried to exclude Fox News – alone among the five White House “pool” networks – from interviewing executive-pay czar Kenneth R. Feinberg on Thursday.
After CNN, ABC, CBS and NBC balked at the plan Tuesday, ABC News’ Jake Tapper asked White House Press Secretary Robert Gibbs about the appropriateness of the administration’s saying that Fox News, which he called “one of our sister organizations,” is “not a news organization.”
Those versions of CNN and network news are gone, and they didn’t even have to change personnel, because the old version of Jake Tapper is gone. A new press has arrived—one perfectly happy to collude with both government and the legal apparatus to grind down a designated enemy.
For the press, the Fox-Dominion saga was a bonanza, with zero concern about the ramifications of obliterating an entire outlet over its election reporting. In 2009, a young Brian Stelter reported skeptically on the Fox-Obama feud; last week, Vanity Fair hired him as a special correspondent just to cover the abortive trial. The New York Times covered the case like it was a second war in Ukraine.
One of the Times’ articles lays bare how Dominion’s legal strategy was based not on America’s actual defamation law per se, but on getting the press to collaborate in dragging down Fox.
The game plan revolved around getting damaging evidence out in public, Hootan Yaghoobzadeh of Staple Street Capital, which owns Dominion, said on CNBC today. That contributed heavily to what was a stacked deck against Fox News, with the broadcaster facing what one legal expert told The New York Times was “unquestionably the strongest defamation case we’ve ever seen against a major media company.”
New York Times v. Sullivan was one of the most important Supreme Court speech decisions of the past sixty years. The case pitted the Times against Montgomery, Alabama police commissioner L.B. Sullivan over a full-page ad the Times had run in its pages. The ad, purchased by supporters of Martin Luther King Jr., blasted the government of Alabama and the Montgomery police, but also included false claims: it misstated how many times King had been arrested, and it described police actions towards protesters as substantially more aggressive than they were. Based on that, Sullivan sued, and although he won in state court, the Supreme Court rejected his claim unanimously. The Court held that, in the case of a public official, simply publishing false information was not defamation ((later, this standard was expanded to all public figures). Instead, a plaintiff would have to demonstrate that the publisher knew the information was false, or acted with reckless disregard for the truth.
Sullivan set a precedent that made it difficult — actually bordering on impossible — for a news outlet to libel or defame a public figure. It’s crucial to recognize the context: the New York Times had, in fact, published false statements, but the Court held that the overall interest of having a free press, and allowing news outlets to investigate and question the powerful, outweighed the benefits of upholding a stricter defamation standard.
For sixty years, the press and progressive jurists celebrated this decision as one of the most momentous decisions in American history. In summer 2021, New York Times Supreme Court reporter Adam Liptak fretted about the peril that conservatives might pose to freedom of the press, because some contemplated revising Sullivan and loosening the standards for libel and defamation:
Four years ago, at his Supreme Court confirmation hearings, Justice Neil M. Gorsuch indicated that a 1964 precedent protecting press freedom was secure. “That’s been the law of the land for, gosh, 50, 60 years,” he said of the decision, New York Times v. Sullivan, which made it very hard for government officials to win libel suits.
But last month, Gorsuch said it was time for the Supreme Court to take another look at the case. “What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets,” he wrote in a dissenting opinion, “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
He is not alone in calling for reconsideration of the decision, which has only one rival as the most important legal triumph for the press in American history.
Yet even as Liptak wrote his article, his colleague Michael Grynbaum wrote triumphally about how defamation lawsuits were leading the way towards destroying “disinformation:
In just a few weeks, lawsuits and legal threats from a pair of obscure election technology companies have achieved what years of advertising boycotts, public pressure campaigns and liberal outrage could not: curbing the flow of misinformation in right-wing media.
Fox Business canceled its highest rated show, “Lou Dobbs Tonight,” on Friday after its host was sued as part of a $2.7 billion defamation lawsuit. On Tuesday, the pro-Trump cable channel Newsmax cut off a guest’s rant about rigged voting machines. Fox News, which seldom bows to critics, has run fact-checking segments to debunk its own anchors’ false claims about electoral fraud.
Litigation represents a new front in the war against misinformation, a scourge that has reshaped American politics, deprived citizens of common facts and paved the way for the deadly Jan. 6 attack on the Capitol.
Grynbaum’s own article stated honestly that standards had changed because, more or less, hatred of alternative media had overwhelmed scruples about freedom of speech and the press:
“If you had asked me 15 years, five years ago, whether I would ever have gotten involved in a defamation case, I would have told you no,” said Roberta Kaplan, a lawyer who is representing Mr. Trump’s niece, Mary L. Trump, and the writer E. Jean Carroll in defamation suits against the former president.
Some First Amendment lawyers say that an axiom — the best antidote to bad speech is more speech — may no longer apply in a media landscape where misinformation can flood public discourse via countless channels, from cable news to the Facebook pages of family and friends.
“This shouldn’t be the way to govern speech in our country,” Ms. Kaplan said. “It’s not an efficient or productive way to promote truth-telling or quality journalistic standards through litigating in court. But I think it’s gotten to the point where the problem is so bad right now there’s virtually no other way to do it.”
Now, the attitude Grynbaum described two years ago has fully triumphed. Confident that they will always hold the levers over how defamation law is used, the press has decided the law may be changed. Bringing a defamation suit should be easy, and grossly punitive, so long as it can afflict the afflicted and comfort the comfortable. Such a cavalier attitude towards freedom of the press might someday soon come back to haunt the mainstream media.
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