First Amendment scholars want to see the media lose these cases
As Fox News defends itself in the Dominion case and in the lawsuit of another voting systems company, Smartmatic, attorneys for the network have argued that the core of the First Amendment is the ability to report on all new statements — even That the false ones – without taking responsibility for them.
“The public had a right to know, and Fox had a right to be covered,” its lawyers wrote. As for inviting guests to make false claims and fabricate absurd stories, the network – citing Sullivan’s decision – argued that “giving them a platform to make unfounded claims is ‘unfounded, strong. And is part and parcel of ‘wide-open’ debate. Matters of public concern.'”
Last week, a federal judge ruled that the Smartmatic case against Fox could proceed, writing that at this point, “the plaintiff has requested sufficient facts to allow the jury to infer that Fox News acted with genuine malice.”
The enormity of the First Amendment has created peculiar bedfellows in matters of freedom of speech. Generally, there is a belief across the political spectrum that things sometimes go wrong at the cost of allowing unrestrained discourse in a free society. When a public interest group in Washington state sued Fox in 2020, alleging it “deliberately and maliciously engaged in a campaign of deceit and omission” about the coronavirus, many First Amendment scholars were critical of it on the grounds that Being irresponsible does not equate to acting out with genuine malice. That suit was dismissed.
But many are not on Fox’s side this time. If the network prevails, some said, the argument that the actual maliciousness standard is too difficult and needs to be reconsidered could be bolstered.
“If Fox wins on these grounds, they may indeed have moved the needle too far,” said George Freeman, executive director of the Media Law Resource Center and a former attorney for The New York Times. He said news organizations have a responsibility when they publish something they suspect may be false to do and that they don’t seem to be supporting.
Fox is arguing that its anchors have questioned and denied the most outrageous allegations.
Paul Clement, the attorney defending Fox in the Smartmatic case, said one of the issues was whether news outlets are required to treat their subjects with skepticism, even if their reporters suspect someone is truthful, at first. was in line with the amendment.
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