Walter Olson
You sometimes hear people talk as if even plaintiffs with meritorious cases can’t win libel suits in American courts because of the First Amendment protections of the Supreme Court’s 1964 New York Times v. Sullivan case. Not so. Today’s settlement, in which Fox has reportedly agreed to pay Dominion Voting Systems a handsome $787.5 million, shows that while Sullivan may be speech‐protective, it did not then and does not now eviscerate common law rights to sue for defamation.
That should take the wind out of demands to “open up” America’s libel law to make it more like Great Britain’s by making cases easier to win. A previously obscure company took a plainly meritorious case to court against one of the richest and most well‐lawyered media defendants in the world. It demonstrated egregious misconduct, plain falsity, and severe damage to its reputation. And it won big. Cato Institute adjunct scholar Andrew Grossman, writing with David B. Rifkin Jr., has argued that while Justice William Brennan’s reasoning in Sullivan may be loose and policy‐oriented, the rules at which he arrived are not that far from those in many earlier cases, which often used formulas that in practice generated results not far from an “actual malice” standard. In its substance, Sullivan is not obviously impractical or unfairly tilted toward the media — especially when you remember that even under Sullivan, plaintiffs can and do regularly bring non‐meritorious defamation claims as a way to intimidate or silence defendants.
The settlement also has implications for how we talk about elections. Some dismiss talk of stolen or rigged elections, even when extending to accusations that named persons have committed spectacular crimes and frauds, as mere banter or differences of opinion. That’s not the law’s view, though. The Dominion settlement reminds us that many of the claims thrown around about the 2020 election are lies and fantasies, knowingly promoted by news executives and hosts afraid their audiences will go elsewhere. And while it is true that many lies and fantastic statements about elections do enjoy First Amendment protection, those that cross the line into defamation often will not.
Lessons for the press aside, if advocacy for what is called election integrity is to be credible, it needs to start with the rigorous practice of factual integrity. [Edited for style and clarity.]
