INTERVIEW: Fake News or Real Lies?

By Reuvain Borchardt

Prof. John Diamond of University of California, College of the Law, San Francisco, discusses the defamation cases arising from allegations of voting-machine fraud in the 2020 election. The most prominent case is Dominion Voting Systems v. Fox News — set to get underway this week, though there are talks of a settlement — though another voting-machine company, Smartmatic, has also filed suit, and the defendants include a number of other conservative media companies and individuals.

Diamond teaches and writes on subjects including torts and mass media law, and authored a law review article in 1996 titled “Rethinking Media Liability for Defamation of Public Figures.”

Prior to entering academia, Diamond — a graduate of Yale College, Cambridge University, and Columbia Law School — served as law clerk to Judge Thomas P. Griesa of the U.S. District Court for the Southern District of New York, and practiced in the litigation department at the Cravath, Swaine & Moore law firm in New York.

He has won a number of teaching awards and was elected by the graduating class to give the faculty commencement address on ten occasions.

Tell us about the defamation suits over allegations that the voting machines distorted the results of the 2020 election.

There were a number of allegations, aired on Fox and other media, saying that the voting machines were crooked and that, for a variety of reasons, they were taking votes from Mr. Trump and giving them to Mr. Biden. Some of the allegations were rather extreme, like it was all being controlled by some dictator in South America and other things that were, quite frankly, on its face rather incredible. But in any event, Fox aired a number of interviews and commentaries with these claims.

People are familiar generally with the concept of defamation: “libel” is written defamation and “slander” refers to oral defamation.

The tort of defamation allows victims of false statements under certain circumstances — and there are restrictions — to recover damages for loss of reputation and economic losses, including disparagement of their product.

Some of the basic elements of defamation here are probably not in dispute. One: that there was an intentional “publication,” or communication to a third party. Obviously in the context of a TV network, that is not an issue: they communicated the information to many people, which, of course, would aggravate the damages, if there was defamation.

Secondly, the plaintiff has to prove that the statements were statements of fact that were false — if the statements were true, it would not be defamation. I don’t think there is a lot of debate about the falsity. Obviously, there are circles of opinion, but I think there was no evidence at all that the machines were fraudulently reporting the vote totals or for the rather outlandish schemes that this was all being controlled by a dictator in South America and so forth. I think it will be easy to establish the point that it’s false — and I’m not sure that Fox is putting a lot of effort into the defense that it is true.

To be considered defamation, these statements have to be assertions of fact. But simply saying, “In my opinion you shot someone,” is not a way to protect yourself, because that is ultimately an assertion of fact. If simply saying, “In my opinion … ” would excuse you, everybody would just say, “In my opinion … ” and then say whatever they want and there would be no more tort of defamation. An opinion has to be something for which there is no true or falsity notion. In this case, these were factual assertions.

In the case of a public official or a public figure — which Dominion has conceded that it is — in addition to proving that the statement was published, which is obvious here, and that it is false, for which there doesn’t appear to be much contention otherwise, the plaintiff has to prove what’s called “actual malice,” also known as “New York Times malice.”

Because the standard arises from the landmark Supreme Court case on defamation, New York Times v. Sullivan.

Right. The holding of that 1964 case and subsequent Supreme Court cases is that when the one being defamed is a public figure, the defendant must have acted with “actual malice,” which means knowledge that the defendant knew the statement that they asserted was false or acted with reckless disregard towards the truth.

There is some very strong evidence that at least some people, at Fox at least, had reckless disregard to the truth, because, through discovery — the civil process by which defendants and plaintiffs have to disclose what information they have that’s relevant — there have been all these emails which suggest knowledge of falsity on the part of different commentators. They’re not monolithic; some of them may have more compelling evidence of doubt than others. Even Rupert Murdoch and other heads have expressed questions about the notion that the election was flawed and that the computers or voting machines were fraudulent. There is a rather remarkable amount of evidence to that effect. And if the plaintiff can show that the defendants knew what they were asserting was false or that they had substantial doubt about it, and they were reckless in asserting it, that satisfies the “actual malice” standard.

Fox News is obviously the most famous of the lawsuits, but Dominion filed suit against other conservative networks and individuals as well. Can you discuss those and if your analysis on any of those is any different? When you have a case against someone like Rudy Giuliani, who said these things on his own podcast, might he have even less of a defense than Fox News or Murdoch, who could try to claim that they just allowed a commentator on their network to say it?

That’s another defense, which I’ll talk about.

But a public figure suing Giuliani for defamation must still prove “New York Times malice.” He can argue that he thought it was true, or he didn’t entertain any doubt about it. If someone honestly thought it was true and honestly didn’t entertain doubts about its falsity, that would be a defense. If they had entertained doubts, the “New York Times malice” standard would not protect them.

I think the individual commentators like Tucker Carlson and the others are all being looked at individually, too. So you’re looking at facts and what evidence is there, and it can be circumstantial evidence, but it has to be proved with convincing clarity — which is less than the “beyond a reasonable doubt” standard used in criminal cases, but more than the “more likely than not” standard used in most civil cases. I think that in the briefs, they go one by one with each one of the commentators and show what evidence there is.

 The other defenses you alluded to are really dependent on a privilege. There’s what’s called the Record Privilege and then there is also something called the Neutral Reportage Privilege. The Record Privilege is generally accepted, but the Neutral Reportage Privilege is minority law, and I don’t believe it’s accepted in New York State, where the law is coming from, even though the case is being tried in Delaware.

Fox has often argued that they could report all this disinformation because it’s newsworthy. There actually is no “newsworthy” defense, but there are these two defenses I just mentioned. If media republish, restate, or give in some form to someone to state something, if you don’t have a privilege or some other protection, you are as liable as the person who initially stated it. I suppose the logic is that if someone on the street says something about someone and then a news anchor repeats it, the person on the street didn’t have much of a megaphone and doesn’t [cause] much damage, but the person who publishes it on TV or in the newspaper has created a lot of damage. So the general defamation rules say, if you repeat or quote something, then you are just as liable as the speaker.

However, there are protections.

There’s the Record Privilege, which is generally accepted, if they were to report what was said in court documents, at a public meeting or a government function, and it has to be presented neutrally; it can’t be used to advocate the position, but it has to be a fair and accurate presentation. However, that is limited to things that are stated at town hall meetings, city council and legislative sessions, official government proceedings, etc. You might debate that certain presidential statements are official proceedings, but the vast majority would not be covered by the Record Privilege, because it was not a public meeting, or official government function — and even if it were covered, it would have to also be covered neutrally and not in the form of advocating that position.

As you’ve mentioned, to be liable for defamation against a public figure, there must have been actual malice. But against a nonpublic entity, you’re liable even if you’re merely negligent. You’ve said Dominion is conceding that they are a public figure, and that they need to prove the higher standard of actual malice. Why is Dominion conceding this? I don’t know how many people ever heard of Dominion before this case. Why doesn’t Dominion argue that they are not a public figure, and then they’d have a much lower burden — to prove that they were defamed even by simple negligence?

That’s a good question, because if their notoriety came totally from just being defamed that would not make them a public figure.

It may be that they think they have such an incredibly strong case of actual malice, that they like to bring it in.

In addition, defamation law recognizes “limited public figures” that must prove New York Times malice if they have sufficient notoriety in limited circles relevant to the defamation, in this case, arguably, the voting machine industry, even if not nationally renowned.

Are there any precedents, any comparable cases that you could point to that might indicate how this case might turn out?

One recent, famous case was Johnny Depp’s lawsuit against his former wife. He is a famous actor so he had to overcome the actual malice requirement — and he succeeded.

There was also the case where The New York Times was sued by Sarah Palin — she had run ads placing a target over some congressional districts, and the Times had published an editorial linking those ads to subsequent mass shootings. She lost the case because she could not prove actual malice.

In addition to the Record Privilege, you mentioned something called the Neutral Reportage privilege. Could that apply here?

It’s only a minority position and I don’t think it is accepted in New York. The Neutral Reportage Privilege is broader than the Record Privilege, which, as I said, is only applicable to public statements and town meetings and so forth.

The Neutral Reportage Privilege originally derived from a case where U.S. government scientists sued The New York Times for reporting that the Audubon Society had stated that they were basically not honestly assessing the dangers of toxins and may have been compromised in integrity. They argued, and the Second Circuit actually held, that there was a Neutral Reportage Privilege: If it’s a prominent figure making an accusation that is newsworthy, and the media publishes it in a neutral, accurate, and fair way, not as a conduit to advocate that position, then it’s legitimate even if they could establish actual malice. So it’s an additional defense. So, for example, the argument might be made that prominent figures are making newsworthy accusations and they [media] are simply reporting it. Even if Fox News had doubts as to its accuracy, or knew it was inaccurate, they could try to argue the Neutral Reportage Privilege.

The problem is that the majority of courts reject it. And the second important point is that even if that privilege were accepted, it would have to be a neutral presentation, where the publishers — the Fox News commentators — were truly giving a neutral presentation of it, and not advancing it. And depending on the facts of the various interviews, I think it’s hard to argue that defense in all cases, though maybe somewhere it could be possible.

Ed.: Following our initial interview, the judge issued a ruling on this matter, and Diamond added the following two paragraphs:

Indeed, in a recent summary judgment ruling extremely favorable to the plaintiff since our initial interview, the trial judge has ruled — consistent with the analysis I discussed above — that both the Neutral Reportage Privilege and the Record Privilege are not applicable and cannot be argued as defenses by Fox to the jury. The judge also ruled that Fox could not argue to the jury that they were merely presenting opinions and not assertions of fact. In addition the judge ruled that “it is CRYSTAL [judge’s capital, bold, and italic] clear that none of the statements relating to Dominion are true” thereby ruling the defamatory statements were false, a conclusion Fox never seriously contested.

 This leaves for the jury’s determination whether actual malice ( needed to win the case) can be proven by Dominion against Fox and if so what the damages are, both to compensate Dominion for losses and punitive damages to deter future wrongdoing by Fox and others. If Fox loses at trial, it is of course quite likely they will appeal to the Supreme Court which could potentially rewrite — if the majority chose to —defamation law.

If you were the lawyer for Fox, how would you advise them to defend this case?

Firstly, I need to issue a disclaimer that I haven’t studied the facts in the detail that a good lawyer involved in the case would.

With that being said, if I were Fox’s attorney I honestly would advise them to settle. That would be my best strategy.

Their argument would be firstly, that they didn’t satisfy New York Times malice because they thought it might be true. And I think it is possible that at least some individuals did, but the problem with that is there are a lot of awfully embarrassing emails that have come out, that suggests that at least for many of the people involved in Fox, that was not the case. What makes this an unusual case is there’s a lot of confession in writing.

If Fox loses this case — whether at trial or they settle — what effects might there be on news reporting by media outlets in the future? Will there be a positive effect that media will be more careful to report the truth, or might there be a chilling effect?

From what I’ve been reading, a lot of traditional First Amendment lawyers who are often very defensive of the media find in this case that Fox and the other networks have gone too far. Because the First Amendment protects people from honest mistakes, maybe stupid mistakes, but honest mistakes. Again, when you think of “New York Times malice,” if you claim stupidity or ignorance you are protected. But here even pro-media First Amendment lawyers say Fox went too far.

Yeah, but most First Amendment lawyers traditionally are on the Left. Is it possible that this is all politics — they don’t like Trump, they don’t like Fox News, so they say there’s no First Amendment protection here?

I think it goes beyond that. I think that really when you look at it, if you believe what’s alleged, and you read some of these things, they are purposely distorting the news in order to gain ratings. And that is a pretty bad thing. And my sense is that whatever the politics of First Amendment lawyers are, they have a professional investment in protecting even the bad actors, even the National Enquirers of the world. I don’t think politics trumps their professional agenda.

The other cases you mentioned, like Johnny Depp, didn’t have the sort of stakes that some view these voting-machine cases as having, that this is an issue undermining democratic elections, and they certainly didn’t arouse the same feelings, with Donald Trump being involved. Do you feel that it’s possible to get a fair jury in a case like this?

Well, Donald Trump isn’t being sued here.

Right, but this still is really about Trump.

Fox will argue that we need to protect the First Amendment — which has even been used to protect the right of neo-Nazis to march in Skokie, Illinois. This isn’t about the particular view, it’s about the First Amendment in general. Remember one thing about a jury: you gotta get ’em all. And so there’s going to be a range of views.

I might add one of the other concerns that has been expressed is that, interestingly, Mr. Trump is against New York Times v. Sullivan standards; as I understand his statements, he thinks that it should be easier to sue people. And ironically, maybe he should be careful what he wishes for, because it’s probably protecting him as much as anyone.

Also, I’d add, some members of the Supreme Court have expressed some criticism about New York Times v. Sullivan.

Do you feel, whether it’s with this case or another, that the Supreme Court is going to take a look at New York Times v. Sullivan anytime soon, and maybe overturn it?

I think Justice Thomas and at least one other justice have expressed some concern about “New York Times malice.” I think if the right case came up, it could, but eliminating “New York Times malice” would make it easier to sue for defamation of public figures, and be more of a pro-plaintiff position.

So if they overturned New York Times v. Sullivan, they would say that even public figures can sue for defamation published with mere negligence, and no actual malice is required.

Right. Though presumably, they could also take a look at the Neutral Reportage Privilege and expand on it and come up with further protections for media outlets.

The problem with the Neutral Reportage Privilege regarding a public figure — which is really a fancy way of saying “it’s newsworthy” — is that it basically undercuts all defamation, because all you have to do is find some third party, put them on, have them say their thing, and there’s no defamation.

What about podcasters like Rudy Giuliani? I don’t think any of them claim to be neutral; people know their shows are all about them offering their opinions.

That’s if it’s truly an opinion. But again, if it’s stated as an assertion, that “in my opinion, this is the fact,” that  doesn’t protect them.

If it can be proven true or false, it’s not an opinion. But there can be blurriness on hyperbole. Like I might say someone is “blackmailing me” hyperbolically, but in that context I am not actually accusing them of the crime of blackmail. So there may be some blurriness. But you can’t just get away with saying “In my opinion, so-and-so took a bribe — but hey, it’s just my opinion.”

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rborchardt@hamodia.com