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Fox News and Newsmax are vulnerable to a threatened defamation lawsuit by the voting system company Smartmatic, experts say.
The news organizations might claim they simply shared views held by others, but legal doctrines say they still could be held responsible.
Legal experts say lawsuits can be a useful tool against misinformation, but take a lot of time and are expensive.
After weeks of sharing baseless allegations that the voting system firms Smartmatic and Dominion Systems had manipulated the outcome of the 2020 presidential election, Fox News and Newsmax ran segments that debunked their own coverage.
Media legal scholars say that move highlights the promise and the limits of the current guardrails against spreading false information. The trigger was the threat of a defamation lawsuit from Smartmatic.
Both news organizations had provided many opportunities for two of President Donald Trump’s top legal advocates, Rudy Giuliani and Sidney Powell, to tell millions of viewers that Smartmatic’s technology and software were designed and used to fix elections, and were, in fact, used that way in 2020. At times, Fox News and Fox Business Network hosts themselves made similar statements, such as when host Maria Bartiromo said, "One source says that the key point to understand is that the Smartmatic system has a backdoor."
Their claims about Smartmatic included a non-existent link to a separate voting firm, Dominion Systems. PolitiFact has rated a range of claims about Smartmatic and Dominion Systems as patently wrong and lacking a shred of proof.
In response to a 20-page letter from Smartmatic’s lawyer, Fox News aired a three-minute interview that rejected the allegations against Smartmatic. The interview with Edward Perez, an expert with the nonprofit Open Source Election Technology Institute, ran during "Lou Dobbs Tonight," "Justice with Judge Jeanine" and Bartiromo’s program "Sunday Morning Futures."
Newsmax at first pushed back against any kind of retraction, saying it was simply sharing the views of its guests. But then it posted a statement Dec. 19 to "clarify its news coverage, and note it has not reported as true certain claims made about these companies."
"No evidence has been offered that Dominion or Smartmatic used software or reprogrammed software that manipulated votes in the 2020 election," the statement said.
A Newsmax host read the entire statement during a Dec. 21 broadcast.
Smartmatic’s lawyer also targeted One America News, a relatively new organization that promotes information favorable to Trump. One America News has yet to respond to the Smartmatic letter.
Dominion Systems put the Trump campaign, Giuliani and Powell on notice for a possible defamation action, and a Dominion Systems manager sued the campaign, Newsmax and others as an individual.
The key principle that leaves Fox News, Newsmax and One America News open to the claim that they defamed Smartmatic and hurt its business has to do with what’s called re-publishing — passing along misinformation that damages someone’s reputation.
A common defense against a defamation action is that the false allegation didn’t come from anyone on the news staff itself, but from guests. Newsmax, for example, said in a statement that "attorneys, Congressmen and others have appeared on Newsmax raising questions about the company and its voting software, citing legal documents or previously published reports about Smartmatic. As any major media outlet, we provide a forum for public concerns and discussion."
That’s not a perfect defense, said Tori Ekstrand, co-director of the University of North Carolina’s Center for Media Law and Policy.
"The re-publication rule says, you don't get to say that someone else said it and it wasn’t me," Ekstrand said. "News organizations can be held responsible for sharing false information that harms another person. Editors should know better than to spread falsehoods, and then say, ‘We’re’ just saying what others have said.’"
There are a few basic elements that a plaintiff in a defamation suit needs to prove. Some are obvious, such as the statement has to be wrong, it has to have been published, it has to name a specific party, and it has to have done harm. On top of that, the news organization has to be at fault for sharing the false information.
The standard for proving fault varies based on whether it’s a private party that’s harmed or a public figure, such as an elected official. Private parties generally enjoy more legal protection against defamatory statements.
"The fault standard is negligence when the plaintiff is a private figure, or actual malice when the plaintiff is a public figure," said University of Baltimore law professor Eric Easton.
When all three news outfits gave room for Giuliani and Powell to say their piece, there was plenty of information at hand that said their allegations were baseless. A jury could consider them negligent for ignoring that information.
But Easton said that even though Smarmatic is a private firm, the dividing line between a private and public figure is not always clear.
"A court could conceivably find these companies to be ‘limited-purpose public figures’ for purposes of bringing a libel action," Easton said.
In that case, proving fault could get tricky. It would have to meet the stricter "actual malice" standard, which means that the plaintiffs would have to prove that the news organizations knew that the information they were sharing was false, or showed reckless disregard for whether it was true or false.
Perhaps the strongest evidence that Fox News and Newsmax considered themselves vulnerable is that they responded to the Smartmatic letter. It’s a form of damage control.
"What we are seeing with the retractions or corrections by Fox News and Newsmax is an attempt to either stave off liability or at least minimize the damages they might be subject to from a defamation lawsuit," said University of Denver law professor Alan Chen.
Typically, the most expensive part of losing a defamation suit is the money the court imposes to punish the wayward news organization. That’s generally much larger than the other part, repaying the wounded party for the actual losses they incurred. Running the corrective pieces could insulate Fox News and Newsmax from higher punitive damages.
"The acquiescence of Fox and Newsmax indicates that they recognize they were on thin ice here," said Easton.
Fox News pointed to instances when its hosts pushed back against reckless allegations of vote rigging. That might help them in the court of public opinion, but it’s unclear whether a judge would count that in their favor. It could be taken as evidence that as a news organization, it knew the claims lacked merit.
Ekstrand at the University of North Carolina said the threat of legal action is a useful step in the fight against misinformation. She said the social media platforms such as Facebook and Twitter made the first move when they began flagging false information shared through their services.
"These suits are the second salvo," she said. "What we’re seeing is that people who suffer from falsehoods won’t take this lying down and will fire back."
On the other hand, she said, lawsuits are no solution to the broader problem.
"They are expensive and time consuming," Ekstrand said. "The falsehoods, in our current digital environment, can spread farther and faster than the process of a libel lawsuit will and can effectively remedy. Even with this ‘clarification,’ we still have large sections of the population believing that the election was rigged."
Benesch, Legal Notice and Retraction Demand from Smartmatic USA Corp., Dec. 10. 2020
Newsmax, Facts About Dominion, Smartmatic You Should Know, Dec. 19, 2020
Legal Information Institute, Defamation, accessed Dec. 23, 2020
PolitiFact, Trump lawyer falsely claims voting technology companies were created for changing election results, Nov. 19, 2020
Washington Post, Newsmax issues sweeping ‘clarification’ debunking its own coverage of election misinformation, Dec. 21, 2020
William And Mary Law Review, FREE SPEECH, RATIONAL DELIBERATION, AND SOME TRUTHS ABOUT LIES, Nov. 2, 2020
Los Angeles Times, Fox News runs fact check in response to defamation charges by voting software firm, Dec. 21, 2020
Fast Company, Dominion Voting Systems seems awful close to suing the Trump campaign for defamation, Dec. 22, 2020
Statement, Press office, Newsmax, Dec. 23, 2020
Interview, Press office staff, Fox News, Dec. 23, 2020
Email exchange, Alan Chen, professor of law, University of Denver Sturm College of Law, Dec. 23, 2020
Interview, Tori Ekstrand, associate professor, UNC Hussman School of Journalism and Media, Dec. 23, 2020
Email exchange, Eric B. Easton, professor of law, University of Baltimore Law School, Dec. 23, 2020