By Robert Reich
Defamation law may turn out to be America’s most important weapon against rightwing media lies.
On Friday, Infowars star Alex Jones’ parent media company, Free Speech Systems, filed for bankruptcy in the midst of a defamation damages trial underway in Austin, Texas.
Jones, you may recall, had portrayed the Sandy Hook school shooting massacre as a hoax involving actors, aimed at increasing gun control. Neil Heslin and Scarlett Lewis, whose 6-year-old son, Jesse Lewis, was among the 20 children and six educators killed, have sued Jones and his media company for $150 million. Courts in Texas and Connecticut have already found Jones liable for defamation.
To win a defamation lawsuit, a plaintiff must show four things: the defendant made a false statement purporting to be fact; the statement was published or communicated; the defendant failed to exercise reasonable care or, worse, knew the statement was incorrect and hurtful but made it anyway; and the plaintiff suffered harm as a result.
By these criteria, it’s no wonder Jones will soon be paying out a fortune in damages. Declaring bankruptcy won’t save him.
Defamation litigation is slow and expensive and, like all litigation, it enriches lawyers. It can also be abused. Anyone remember what happened to Gawkerafter its tech blog published a post under the headline, “Peter Thiel is totally gay, people”? Billionaire Thiel quietly bankrolled Hulk Hogan, the professional wrestler, to sue Gawker for defaming Hogan in a totally unrelated story — and Hogan’s nine-figure defamation award bankrupted Gawker Media.
But at a time when social media can’t be trusted to police itself against weaponized lies, and when much of the public doesn’t trust government to regulate social media, defamation lawsuits may be the best we can hope for.
One America News (OAN), a right-wing media organization that pushed conspiracy theories about the election, is facing so many defamation lawsuits from those injured by the network’s lies that its future is now in doubt.
Five years ago, Trump was ecstatic about OAN’s flattering coverage of him. By the summer of 2020 — dissatisfied with what he considered insufficient gushing by Fox News – Trump was urging his followers to switch to OAN and Newsmax, calling them “much better” than Fox. He did the same after the election, when OAN’s journalists were more willing than many Fox correspondents to continue pushing Trump’s Big Lie.
Last December, Ruby Freeman and Wandrea Moss, Georgia election workers, sued OAN hosts and guests, including Rudy Giuliani, for baselessly accusing them of committing election fraud and engaging in a criminal conspiracy. Freeman and Moss said OAN’s lies subjected them to an onslaught of harassment and racist threats, leading one of them to leave her home for months at the recommendation of the Federal Bureau of Investigation.
OAN ultimately settled the case for an undisclosed sum. Apparently as part of the settlement agreement, OAN admitted on air that Freeman and Miss “did not engage in ballot fraud or criminal misconduct.”
Meanwhile, Dominion Voting Systems, which provided voting machines to 28 states in the 2020 election, has accused OAN of defaming the company and its products by airing false reports that its machines switched votes from Donald Trump to President Biden, thereby hurting its business and putting its employees in danger. (One of those employees, Eric Coomer, received death threats after OAN named him in a report as an alleged collaborator of the far-left movement, antifa. Coomer is now suing OAN, too.)
The litigation has not gone well for OAN. Judges have rejected its motions to dismiss the case. In one ruling, a judge concluded that OAN acted “maliciously and consciously” in perpetuating falsehoods about Dominion, and that its chief White House correspondent, Chanel Rion, failed to exercise even minimal journalistic standards.
In April, OAN was dropped by AT&T’s DirecTV, which has about 15 million subscribers. Verizon just announced it would stop carrying OAN on its Fios television service. OAN will soon be available to no more than a few hundred thousand people.
Dominion isn’t stopping with OAN. It’s seeking a total of $1.6 billion in damages extending to Newsmax as well as to Fox News and Fox News’s parent, the News Corp. And it’s seeking an additional $1.3 billion in damages from each of Trump’s most whacko conspirators — Sydney Powell, Rudy Giuliani and MyPillow CEO Mike Lindell.
As to the News Corp, Dominion alleges that Rupert Murdoch and his son, Lachlan, acted with “actual malice” because they knew that the lie Fox News was touting was false.
Defamation lawsuits aren’t sure things, and they pose potential threats to the free press. But if the press is alert to errors and corrects them quickly, defamation shouldn’t be a problem.
Sarah Palin recently lost her defamation suit against The New York Times, in which she alleged that the Times defamed her when it erroneously linked her campaign rhetoric to a mass shooting. Part of the reason Palin lost was the Times quickly corrected its mistake.
The Times’ behavior stands in sharp contrast to that of Fox News. Although Dominion repeatedly asked Fox News to stop its lies and correct the record, Fox persisted even though it knew they were lies (Dominion cites a report that Rupert Murdoch spoke with Trump a few days after the election “and informed him that he had lost.”)
Even if it loses the lawsuit, Fox News can weather this storm financially (although cable providers are likely to use the lawsuit to drive down what Fox charges them when they renegotiate their contracts at the end of this year).
Notably, though, Trump has not been interviewed on Fox in more than a hundred days and the network has avoided live coverage of his rallies and speeches, while granting more airtime to other Republican presidential hopefuls, such as Florida Gov. Ron DeSantis. Meanwhile, Murdoch’s Wall Street Journal and New York Post have issued sharp rebukes of Trump.
Is this because the Murdochs have had a change of heart about Trump? Or because they’ve had a change of litigation strategy?