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|Although the libel suit settlement between Fox and Dominion was a win for the First Amendment, the cost of defending against a libel suit can be enormous — especially when the journalist lacks insurance or the legal resources of a major media corporation. Photo: Michael Dziedzic on Unsplash.|
WatchDog Opinion: Why Fox-Dominion Matters for Environmental Journalists
By Joseph A. Davis
The $787.5 million settlement between Fox and Dominion on April 18 was a win for the First Amendment — and the key libel precedent that has been making it stronger since 1964.
New York Times v. Sullivan was the Supreme Court decision that established the “actual malice” standard for libel and defamation cases involving news media stories about public figures. Journalists, including environmental reporters, have been indebted to it for not being sued for doing good journalism.
One aspect of the Dominion case that should remind us of the legal threats to environmental journalism is that the plaintiff was a corporation. Environmental journalists publish negative material about corporations all the time.
Corporations (the Supreme Court has asserted) are people. So says the current court — as in the famous case of Citizens United v. Federal Election Commission. The actual law of corporate personhood goes back much further than this, but the current court (under Chief Justice John Roberts) fully subscribes to the idea.
If a journalist or their outlet publishes an
article critical of Exxon (or Dow, Weyerhaeuser
or Freeport-McMoRan), they could be sued for libel.
So if a journalist or their outlet publishes an article critical of Exxon (or Dow, Weyerhaeuser or Freeport-McMoRan), they could be sued for libel.
This is worth thinking about because the cost of defending against a libel suit can be enormous — especially when the journalist lacks insurance or the legal resources of a major media corporation.
And it’s even more worth thinking about because some justices on the current court want to revisit Times v. Sullivan. The original 1964 decision was an unequivocal 9-0. But today, both Justice Clarence Thomas and Justice Neil M. Gorsuch have said publicly (may require subscription) that they would reconsider it.
Still another reason to worry is that the current right-wing movement has set its sights on libel law. The WatchDog pointed last month to the threat this poses in Florida, among other states.
And Donald Trump, who is currently running again for president, has himself announced (and re-announced; may require subscription) his desire to “open up” libel laws. Having declared the press “the enemy of the people,” Trump in another presidency could use libel law as a weapon.
Dominion’s case against Fox
Arguably, one thing that brought Fox to settle the Dominion case was the strength of Dominion’s evidence of “actual malice.” Texts and other documents seemed to abundantly show that Fox as an organization, and its individual employees, knew the untruth of what they were saying about Dominion machines and knowingly broadcast the lies anyway.
Another thing that illustrated the strength of Dominion’s case was Fox’s efforts to withhold from disclosure even more (may require subscription) evidence of actual malice. A trial would have brought it out.
All this was good for journalism. “The truth matters. Lies have consequences,” said Dominion attorney Justin Nelson after the settlement.
The dark side of today’s media reality is that truth does not always triumph and dominate the airwaves. Tabloid journalism is still alive and flourishing (beyond the Trump context).
Despite the strength of the “actual malice” doctrine, it has not been enough to rein in the shadowy actors in the dark corners. As social media proliferate, it is not always clear who really constitutes the news media. And corporations have figured out new ways to lie that seem innocuous.
Environment beat not immune to libel battles
Those who don’t think this can impact the environmental beat ignore history.
You may remember the “McLibel” case which started in 1997 and turned out to be one of the longest-running libel cases in U.K. history. McDonald’s sued two environmental activists who published leaflets criticizing its practices. The Fox-Dominion case should give U.S. media some gratitude that they do not work under British libel law.
A major libel case in the United States
was the long-running case of climate
scientist Michael Mann against the
conservative National Review and
Competitive Enterprise Institute.
A major libel case in the United States was the long-running case of climate scientist Michael Mann against the conservative National Review and Competitive Enterprise Institute — whom he accused of misstating his science. Mann was one of those who came up with the “hockey stick” graph of rapidly increasing global temperatures.
In today’s environmental media, the battles are often fought over nuance rather than fact. Greenwashing is all the rage. But in the last decade, environmentalists have been launching all kinds of “climate liability” suits — most memorably the “Exxon Knew” movement, which has also been a theme for prize-winning environmental journalism.
The legal battle over defamation and libel is far from over, despite the Dominion settlement. Election software maker Smartmatic is also suing Fox for defamation. Stay tuned. Stay watchful.
Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, and curates SEJ's weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column.
* From the weekly news magazine SEJournal Online, Vol. 8, No. 19. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.