Presence of Malice
Okay, all you free speechers out there just calm the hell down.
I am just gonna bounce in here and say something to you before you bust the twine holding your brain together. Please do not equate defamation lawsuits with having anything to do with the First Amendment.
Most important: The First Amendment says the government cannot deprive people of free speech, except under certain circumstances. Since 1969, the government can and will deprive you of free speech only if it is intended, and likely to produce, “imminent lawless action.”
Defamation is a whole ‘nother ballgame. A lawyer I know defined it this way: “Speech is free; lies you gotta pay for.” That’s simplistic but it’s pretty true. To sue somebody for defamation you have to prove not only that it was a lie, but that it was a malicious lie. It can’t be an accidental lie.
Under New York Times v. Sullivan, a 1964 Supreme Court ruling that has guided libel and defamation claims for nearly 60 years, a plaintiff like Dominion must show that a defendant like Fox published false statements with “actual malice” — meaning that it was done “with knowledge that it was false or with reckless disregard of whether it was false or not.”
Which brings us to Dominion Voting Systems’ billion and half dollar lawsuit against Fox News. Fox trashed Dominion and accused them of purposefully cheating and stealing an election. The hard part is proving that Fox didn’t do this because they are dumb because, you know, they truly are dumb. And even supporting Trump isn’t proof of malice. But, do you know what is proof? Lies about the lies, and you gotta pay for lies.
Dominion said the emails and texts show that Fox’s hosts and executives knew the claims being peddled by then-president Donald Trump’s lawyers Rudy Giuliani and Sidney Powell weren’t true — some employees privately described them as “ludicrous” and “mind blowingly nuts”— but Fox kept airing them to keep its audience from changing channels.
Dominion is sitting pretty now since Fox’s internal emails are public.
Personally, I don’t think the emails will hurt Fox at all with their viewers because their viewers knew all along that this stuff is crazy. Legal experts are declaring, however, that Fox’s internal emails are “incredibly damning.” Wait for more lawsuits to follow. Now individual people they lied about will be able to get lawyers. And, that is a good thing.
Fox viewers will just find someone else to lie to them, leaving Rupert to cough up $1.6 BILLION and whatever Dominion can squeeze out of Carlson, et all. There’s another voting system that has also sued them all (can’t recall the name) so that will be next. Soon it might turn into a class action!
1Grandma Ada – I believe you’re thinking of Smartmatic.
2Personally, I don’t think the emails will hurt Fox at all with their viewers because their viewers knew all along that this stuff is crazy.
That is not an argument that the Dominion lawyers will make, however. They are, after all, claiming concrete damages and most of that is that they lost sales directly traceable to loss of reputation.
As for the Fox fan base, whether they know or not about the facts of this case is immaterial. They love the idea that their guy is such a dirty fighter that the libs got a chair smacked over their head while the ref was distracted.
3Ir never ceases to amaze me how little people understand the First Amendment. If you say to me, “You’re a liar and thief, your feet stink and you don’t love Jesus,” you will not go to jail for that. However, you shouldn’t expect a party invitation from me and if you show up uninvited, I might call the police to have you arrested for trespassing.
In that vein, people seem to think they can publicly say anything about anyone and get away with it. “I have First Amendment rights!” I am just loving the turn of events in the Dominion case against Fox. But I also know that, even if this winds up bankrupting Fox News, somebody will come along in no time to take its place. Sigh.
4Fox personalities have claimed they’re just entertainers to justify obvious craziness and false narratives. Not sure they will use that in court but I’m guessing Fox “News” will be throwing a lot of crap at the wall because they’re panicking.
5And speaking of first amendment rights at it’s worst, check out Scott Adams of Dilbert fame. I plan to contact the editors of the Oregonian and threaten to cancel my subscription. I don’t want to patronize this creep in any way.
https://www.tmz.com/2023/02/25/dilbert-creator-scott-adam-racist-rant-comic-strip-banned/
Update on Dilbert’s daddy, Scott Adams- the Oregonian just announced cancellation of his “comic” strip. If you feel like me, you should send a comment to your local rag if they still carry Dilbert.
6I used to read his strip until I read about his support of TFFG. Recently he said he’s not supporting him anymore, so figure he’s moved in to another racist.
Ms. JuanitaJean Herownself, nevuh should one of your tutorials require twine to keep a brain in place. At best those who cannot comprehend what you write so succinctly are already past the point of chains and a helmet to keep their cranium from exploding.
Now if was to describe Teddie Cruz as a rat, there might be probable cause for rats to bring a class action suit against me.
7One thing that would help would be to include a damages theory based on “unjust enrichment.” There seems to be a growing industry of people making lots of money by defaming famous people. It would solve the “Streisand Problem” – where some tabloid made so much money defaming Barbara Streisand that the damages she eventually won were a cost of doing business.
The damages the successful plaintiff can recover are based on the harm to their reputation – plus perhaps punitive damages. However, imagine the impact if someone such as Alex Jones was ordered to pay successful plaintiffs not only reimbursement for the harm to the plaintiffs’ reputation – but also disgorge all the money he made on his outlets due to telling those lies.
This isn’t harmful to free speech, as truth would remain a defense. However, it adds “any money you make from lying will be taking from you” to “lies you have to pay for.” It would go a long way to stopping the lies permeating social media.
8RepubAnon @8 Great ideas, seriously excellent. Another thing we need to enforce the rule of law against these liars is to remove judges at every level that allow the liars malfeasance to fester. Wherevuh those of us who have elected judges we have direct recourse. Appointed judges can be removed with difficulty, but it is worth the effort to do what we can to hold them to the rule of law.
9I especially appreciate that the Fox News emails are a twofer.
1) the emails incriminate Fox
102) Fox harped on long enough about Hillary’s emails, which were nothing. Now they have their own, which just might be something
Fox are just paid to lie .
11“Speech is free; lies you gotta pay for.”
12Dayum, maybe I do need a tattoo after all!
Fox has managed to strangle itself. Who says it couldn’t be done?
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