Robbins: Dominion v. Fox and the First Amendment trial that wasn’t |

Robbins: Dominion v. Fox and the First Amendment trial that wasn’t

What about the First Amendment?! What about free speech?! Can’t the press say what it willy-nilly wants to say without the risk of being sued?!!

Suddenly, all but the shouting, and the boasting, and the regret is over.

On the first day of the trial, Dominion Voting settled for a handsome payday from Fox News. What was supposed to be a six-week trial ended, depending on one’s perspective, with either a whimper or a bang!

Seven-hundred-eighty-seven-some million dollars later, and Fox’s tail between its legs, what is certain is it’s now game over.

But what was all the futzing over? What was the trial that never turned out to be all about?

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In a nutshell, what Dominion claimed was that it suffered damages owing to Fox News’ continued bombardment of fake news in claiming that the 2020 presidential election was stolen owing, in substantial part, to Dominion’s rigged electronic voting system. Weighting Dominion’s case was what seemed the clear case that Fox News knew that what it was reporting was a lie but, nonetheless, continued to pound the stolen-election theme in a cynical ploy to not alienate its hardcore Trump-supporting viewers.

This leads us to the ground upon which the case was set to tread, the seminal 1964 United States Supreme Court case of New York Times v. Sullivan.

During the Civil Rights Movement of the 1960s, the New York Times published a full-page advertisement by supporters of Martin Luther King Jr., entitled “Heed Their Rising Voices.” The ad criticized the police in Montgomery, Alabama, for their mistreatment of civil rights protesters. The ad also contained a number of factual inaccuracies, such as the number of times King had been arrested during the protests, what song the protesters had sung, and whether students had been expelled for participating.

Although he was not named in the ad, Montgomery police commissioner L.B. Sullivan had his hackles raised. He claimed that had been defamed! But whoa there, Pardner. Before seeking punitive damages in a libel action, Alabama law required a public figure to first demand a retraction. So Sullivan hoisted up his quill and dispatched a written request to the Times asking it — politely, one presumes — to publicly retract the ad.

When, the Times said, “Nah. Nothing to see here,” and failed to dull the burrs that had gotten beneath the commissioner’s saddle, he sued the Times and a group of African American ministers mentioned in the ad. Knowing which side his grits were buttered on, Sullivan “home-courted” his action, bringing suit in the cozy confines of the local county court.

In the charged atmosphere of the 1960s, the result was predictable. The judge ruled that the ad’s inaccuracies were defamatory “per se,” and the jury returned a verdict in favor of Sullivan, awarding him $500,000 in damages. In this milieu, “per se” may be thought of as “inherently.”

 The Times appealed the verdict to the Supreme Court of Alabama, which, again — perhaps predictably — affirmed it. It then appealed to the United States Supreme Court, which agreed to hear the case. And there is where the rubber met the road.

The question teed up for the Court’s consideration was this: did Alabama’s libel law unconstitutionally infringe upon the First Amendment’s freedom of speech and freedom of the press protections?

To sustain a claim of defamation or its squirming polliwog, libel, the First Amendment requires that a party knew, in deciding to publish the information, that the statement was false or reckless.

The Supremes were unanimous, holding in a 9-0 decision that news publications could not be liable for libel to public officials unless the plaintiff met the exacting standard of “actual malice” in the publication of the false statement. The rule of law applied by the Alabama courts was found unconstitutional for its failure to provide safeguards for freedom of speech and of the press, as required by the First and Fourteenth Amendment.

The decision further held that the evidence presented in the particular case was insufficient to support a judgment for Sullivan.

Writ large, what the Court ruled was that “the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity).”

In Sullivan, the Supreme Court adopted the term “actual malice” and gave it constitutional significance.

In his concurring opinion, Justice Black explained, “Malice, even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment.”

Following the Sullivan decision in 1964, the Supreme Court extended its higher legal standard for defamation to all “public figures” (not just public officials). Because of the high burden of proof on the plaintiff and the difficulty of proving the defendant’s real knowledge, these decisions have made it extremely difficult for a public figure to win a defamation lawsuit in the United States.

Sullivan opened up the doors to a free”er” press and helped remove the fetters from the Fourth Estate.

From the lips of Benjamin Franklin, “Freedom of speech is a principal pillar of a free government: When this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates.”

From Thomas Jefferson, “Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.” And Jefferson again, “Our liberty depends on the freedom of the press, and that cannot be limited without being lost.”

Sullivan assured that the press must be free, especially to criticize those in power.

It does us all well to remember the essential role of a free press — as the founders wished it to be — in today’s all-too-contentious political huff and swirl. However, that freedom is not without limits.

Did Fox News, which clearly knew that what it was reporting was false meet the high standard of “actual” or knowing “malice” or reckless disregard of the truth? That is what the Dominion case was all about. With the sudden settlement though, we will never really know.

But ask yourself; would Fox really have dished out more than a quarter billion dollars if it thought its odds were good? Can’t say for sure. But I think the better money is on what else Fox did not want to come out if the trial had moved forward.

Cynical of me?

Maybe. Maybe not.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the law firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, and divorce, and civil litigation. Robbins may be reached at 970-926-4461 or at his email address at His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers.

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