23 February 2023

The Term is, "Actual Malice."

If you are at all familiar with US libel and defamation law, you have heard of New York Times Co. v. Sullivan, which established the standard of, "Actual Malice," meaning that a statement had to be made with, "With knowledge that it was false or with reckless disregard of whether it was false or not," in order for a public figure to prevail in a lawsuit.

Well, recent revelations in the lawsuit by Dominion Voting Systems against Fox News has revealed documents showing that when their "reporters" claimed that Dominion was involved in stealing the election  for Joe Biden, that they knew that this was a lie.

What's more there are records that provide irrefutable documentary evidence that they knew that their allegations of a stolen elections were false when they reported them.

That's actual malice, and Fox News is in for a world of hurt:

The disclosure of emails and texts in which Fox News executives and personalities disparaged the same election conspiracies being floated on their shows has greatly increased the chances that a defamation case against the network will succeed, legal experts say.

Dominion Voting Systems included dozens of messages sent internally by Fox co-founder Rupert Murdoch and on-air stars such as Tucker Carlson in a brief made public last week in support of the voting technology company’s $1.6 billion lawsuit against the network. Dominion claims it was damaged in the months after the 2020 election after Fox repeatedly aired false statements that it was part of a conspiracy to fraudulently elect Joe Biden.

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.

If so, the messages could amount to powerful body of evidence against Fox, according to First Amendment experts, because they meet a critical and difficult-to-meet standard in such cases.

There will be some good to come from this.  As legal maven Lawrence Tribe noted, "If anything, the landmark this case is likely to establish will help show that New York Times v. Sullivan is not an impossible legal hurdle to clear, as some critics have claimed."

Hopefully, this will take some wind out of the sails of Clarence Thomas' jihad against New York Times v. Sullivan.



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