Imagining the Appeal if the Dominion v. Fox News Case Had Gone to Trial
The highly anticipated trial of Dominion Voting System’s defamation lawsuit against Fox News evaporated on the cusp of trial with a settlement. As a result, we can only speculate about what an appeal might have looked like – but that does not prevent us from engaging in the thought experiment of what might have occurred. Both sides were prepared for an appeal regardless of the trial’s outcome. And the First Amendment implications of the case could well have garnered interest in the U.S. Supreme Court.
At trial, Dominion had two overriding burdens. It had to prove that Fox’s reporting on the voting machine manufacturer was not true and that, in doing so, Fox engaged in actual malice because it knew the claims were false or showed a reckless disregard for the truth. On the first issue, the truth or falsity of the on-air assertions by Fox, the judge had granted summary judgment in Dominion’s favor – Fox could not overcome the evidence that its on-air claims were false. The trial, then, would likely have focused on whether the actual malice standard was met and the resulting damages.
Although a host of issues may have arisen from the conduct of the trial or objections and rulings made during the course of trial, it is not hard to imagine that, if Fox had lost, some of the issues it might have appealed.
First, was the trial court’s decision on summary judgment supported by uncontroverted evidence? A court may only grant summary judgment if no material issues of fact exist, thereby entitling the movant to judgment as a matter of law.[1] The court reviews factual assertions in the light most favorable to the party opposing summary judgment, and any inferences drawn must operate to the benefit of that nonmovant.[2] Moreover, using a burden-shifting standard, the nonmoving party’s evidentiary obligation is triggered only if the moving party’s evidence appears to establish each element of the case.[3] The U.S. Supreme Court has described the burden the nonmovant bears to be to create more than “some metaphysical doubt as to the material facts.”[4]
My purpose in reviewing the applicable standards is not to comb through the evidence proffered in the case to support summary judgment, but to show that the standard, at face value, disfavors summary judgment as long as an operative fact is in real dispute. Even so, an appellate court examines a grant of summary judgment de novo, because the absence of contradictory facts renders the issue a question of law.[5]
Second, one can imagine an appeal focusing on whether the actual-malice standard, deemed protective of the First Amendment rights of the media, was met. Under New York Times v. Sullivan[6] and Curtis Pub. Co. v. Butts,[7] both public officials and public figures seeking to recover compensation for a defamatory falsehood must show that the defamation was the product of actual malice. That standard, as articulated in Butts, tellingly states that it requires “a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.”[8] The reports on the evidence amply show that Fox’s on-air personalities and owner Rupert Murdoch understood that the claims of election fraud that were common currency on the network were laughably false and suggest that Dominion had the goods to overcome the actual-malice hurdle.
On the other hand, observers have no idea whether Fox had evidence that demonstrated sufficient doubt from reliable quarters that would have chipped away at any finding of malice. Even so, taking a different angle to an appeal, it is fun to imagine counsel for Fox attempting to contrive an argument that the modern standard for investigation and reporting by today’s “responsible publishers” is greatly diminished from when Butts was rendered so that the standard was satisfied in this instance. That Fox itself is heavily responsible for that lowering of standards would not seem to enter into that calculation.
Finally, the most interesting potential issue on appeal could be whether the New York Times test is still valid as a constitutional command. Concurring in a 2019 order that denied certiorari in a defamation case brought by an alleged victim of sexual assault against actor and comedian Bill Cosby, Justice Clarence Thomas solicited an appropriate case to review New York Times v. Sullivan and its progeny, asserting that the standards it set were “policy-driven decisions masquerading as constitutional law” and that providing extra protection for public officials and figures lacked support in the First Amendment’s original understandings.[9] Justice Thomas reiterated this stance in 2021 and 2022, both times dissenting from the denial of cert and suggesting that each petition provided a good vehicle to reevaluate the interplay of the First Amendment and libel law.[10]
In the 2021 case, Justice Thomas was joined in this sentiment, by Justice Neil Gorsuch, who wrote separately. Justice Gorsuch agreed that the First Amendment involved no special solicitude for libel that should affect its treatment in court, but he also suggested that circumstances had changed. He noted that in today’s world, everyone can become a publisher and a public figure in ways unimaginable in 1964.[11] He speculated that the New York Times majority may have believed that the rule they announced “would apply only to a small number of prominent governmental officials whose names were always in the news and whose actions involved the administration of public affairs.”[12] Now, he said, it applies much more widely in a world where expediency is valued over “investigation, fact-checking, or editing.”[13]
Justice Gorsuch’s speculation seems about the New York Times majority’s presumptions seems off the mark. In the original case, plaintiff L.B. Sullivan, a Montgomery, Alabama city commissioner with supervisory authority over the police department sued the Times over its publication of a one-page newspaper advertisement by place by four black clergymen decrying the treatment of nonviolent civil rights demonstrators by “Southern violators.” Though he was not named as one the Southern violators, Sullivan claimed the advertisement defamed him. As required by Alabama law, he wrote the Times and demanded a retraction before suing. Rather than enter a retraction, the Times wrote back, “‘we . . . are somewhat puzzled as to how you think the statements in any way reflect on you.’’’[14] It seems highly unlikely that the majority imagined they were covering a “small number of prominent government officials whose names were always in the news.”
Even so, more potential tests of New York Times are likely coming. A Dominion loss would have opened the door to a challenge in this instance against a conservative media institution, but the idea of a challenge has become a cause for a number of conservative politicians. The markers laid down by members of the Supreme Court remain invitations in an appropriate case, making it likely that a case is coming, even if it will never be Dominion’s lawsuit against Fox.
[1] Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Because the trial was to take place in a Delaware state court, Delaware precedent is cited here.
[2] Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992)
[3] Moore, supra note 1, 405 A.2d at 681.
[4] Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
[5] Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).
[6] 376 U.S. 254, 279-80 (1964).
[7] 388 U.S. 130, 155 (1967).
[8] Id. at 155.
[9] McKee v. Cosby, 139 S. Ct. 675, 676. 678 (2019) (Thomas, J., concurring in denial of cert.).
[10] Coral Ridge Ministries Media, Inc. v. S. Poverty L. Ctr., 142 S. Ct. 2453, 2455 (2022) (Thomas, J., dissenting from denial of cert.); Berisha v. Lawson, 141 S. Ct. 2424, 2425 (2021) (Thomas, J., dissenting from denial of cert.).
[11] Id. at 2428-29 (Gorsuch, J., dissenting from denial of cert.).
[12] Id. at 2428.
[13] Id.
[14] New York Times, 376 U.S. at 261.