When Fox News agreed to pay Dominion Voting Systems $787.5 million to settle a $1.6 billion defamation lawsuit, that was by no means the end of their legal woes.
The right-wing cable news outlet is still facing a $2.6 billion defamation lawsuit from Smartmatic (a Dominion competitor) and a lawsuit by former Fox News producer Abby Grossberg, who alleges that it tried to bully her into giving misleading testimony in the Dominion case. And to make matters worse for Fox News, former Homeland Security official Nina Jankowicz is suing them for defamation.
To understand why defamation lawsuits are so difficult to prove, one needs some knowledge of the U.S. Supreme Court's landmark 1964 ruling in New York Times v. Sullivan. That year, Chief Justice Earl Warren (a Republican appointee of President Dwight D. Eisenhower) and eight colleagues unanimously ruled that plaintiffs must show "actual malice" and a "reckless disregard" for facts in defamation lawsuits.
Heated commentary and inflammatory rhetoric don't meet the Sullivan standard for showing defamation; nor does sloppy reporting or an honest mistake. Spin doesn't qualify as defamation either.
But knowingly pushing outright lies does. And Fox News' attorneys obviously believed that Dominion had so much damning evidence in its lawsuit that paying $787.5 million would be easier than going to trial.
During an interview with The Guardian, Jankowicz laid out some reasons why she believes that Fox News crosses dangerous lines that go beyond ordinary right-wing punditry. Jankowicz, under President Joe Biden, formerly headed the now-dissolved Disinformation Governance Board (DGB) within the U.S. Department of Homeland Security (DHS). And she is known for her expertise on disinformation.
Jankowicz only held that position for about three weeks. The Guardian's Ed Pilkington, in an article published on May 19, notes that the DGB was "abruptly shut down in the wake of a storm of virulent right-wing criticism, allegedly fueled by Fox News" — and that Jankowicz was "attacked as being part of a conspiracy to censor right-wing comment spearheaded by Joe Biden."
Jankowicz told The Guardian, "There needs to be consequences. It was lies, very personal and very vitriolic lies. And I don't think that is democratic…. If we can't agree on statements of fact, how can you live in a democracy?”
The former DHS official noted that she was inundated with death threats when Fox News pundits like Sean Hannity and former host Tucker Carlson demonized her.
"Every time they talked about me on Fox," she told The Guardian, "a new wave of harassment would start. I would get a spike especially when Carlson and Hannity mentioned me."
Over the years, the liberal American Civil Liberties Union (ACLU) has, time and time again, defended the right of conservatives to speak their minds — no matter how vehemently they might have disagreed with them. Pro-choice ACLU attorneys have defended anti-abortion activists' right to protest and are the first to say that the Sullivan standard gives media pundits, both left and right, considerable leeway.
But Jankowicz alleges that Fox News went way behind ordinary "meanness" in its attacks against her.
Jankowicz told The Guardian, "I don't think anybody should pursue a lawsuit just because someone said something mean about them. I have a thick skin. But I believe Fox's continued lies about individuals are a greater threat to free speech and democracy than a carefully considered, narrow lawsuit like mine…. That sort of coverage is not protected speech. If Fox isn't brought to account, they will not stop."
