April 08, 2021
I was going to let pass this column by Margaret Sullivan, warning us not to applaud Dominion’s lawsuit against Fox News. I’m generally a big fan of Sullivan’s columns and was willing to look the other way on what I see as a very poorly argued piece. But when a friend sent it to me and asked my opinion, I decided it was worth chiming in.
To remind people of the issue, Dominion is a voting machine manufacturer. Fox has had numerous guests appear on its network who have made outlandish accusations about how Dominion rigged its machines so as to undercount Donald Trump’s votes and/or inflate Joe Biden’s totals.
Needless to say, none of them have an iota of evidence to support these claims and many are absurd on their face. For example, Hugo Chavez, the former president of Venezuela who has been dead for eight years, figures prominently in many of the stories. Nonetheless, many Fox News viewers believe them.
For a voting machine manufacturer, the claim that your machines are rigged is pretty much a textbook definition of a damaging statement. Therefore, Dominion should have a pretty solid case.
Sullivan doesn’t dispute any of this, instead, she points out that libel or defamation suits can also be used against news outlets doing serious reporting. She highlights the case of Reveal, a nonprofit news outfit that is dedicated to investigative reporting. Reveal was nearly forced out of business due to the cost of defending itself against a charity that it exposed as being run by a cult. Sullivan’s takeaway is that defamation lawsuits can be used as a weapon against legitimate news organizations doing serious reporting.
Sullivan is right on this point, but wrong in understanding the implications. Every civil course of action can be abused by those with money to harm people without substantial resources. There are tens of thousands of frivolous tort cases filed every year, but would anyone argue that we should deny people the right to sue a contractor that mistakenly sets their customer’s house on fire? The same applies to suits for breach of contract. If I pay someone $10,000 in advance to paint my house and they don’t do it, should I not be able to sue to get my money back?
Even stalking injunctions can be misused. Typically, a no stalking order is obtained by a woman to protect her and/or her children from an abusive ex-spouse or former boyfriend. However, in my little town in Utah, a powerful political figure managed to get a no stalking order against a protestor who had never touched him, threatened to touch him, or come anywhere near his house. Should we take away the right to have no stalking injunctions?
The reality is that our legal system can be abused by the powerful to harm those with less power. That is the result of the enormous disparities of income and power in this country, and the inadequate shields against abuse in the legal system. It would be great to have more shields to protect against abuse, but Sullivan’s reservations about Dominion’s suit could be equally well applied to any effort to seek justice through the legal system.
I will add that I was totally applauding Dominion’s suit and the earlier one by Smartmatic, which makes voting software. Fox and a range of Trump cronies made outlandish charges against both. They should be forced to pay a price for these lies.
The alternative is a lot of tut-tutting and hand-wringing, saying it is unfortunate that a major news outlet and prominent political figures would resort to outright lies to advance their political agenda. Perhaps this tut-tutting and hand-wringing makes some people feel good, but it does absolutely zero to stop the lies.
On the other hand, if Fox and Trump’s cronies have to pay tens or hundreds of millions of dollars in damages as a result of their lies, they will be more reluctant to make up such lies in the future. The threat of defamation suits is also very helpful in preventing lies from being pushed in the first place.
We see this clearly with Donald Trump. Even though he endlessly claims the election was stolen with millions of fake votes for Biden, he will literally never make any specific allegation. This is because he knows that if he named anyone who supposedly played a role in producing these fake votes, he will be sued for whatever is left of his father’s fortune.
This also allows the rest of us to play on Trump’s lie, pointing out that even though he claims millions of votes were fraudulently cast, he cannot identify a single person involved in this effort. For anyone not completely lost in outer space, this should be a decisive slam dunk.
Anyhow, telling us that libel law can be abused is telling us nothing. Most of us know that those with money and power can use the legal system against the less powerful. This is true with libel law just as with any other area of law.