Opinion

Fox News may be in a class by itself. That’s not a good thing.

Before trial, the parties in a civil suit can bring a partial or complete motion for summary judgment, asking the court to rule that, as a matter of law, there is nothing for the jury to decide. The facts can be so one-sided that there is, in essence, no dispute. In nearly all cases, the motion is typically brought by the defendant, asserting that the plaintiff has not presented sufficient facts to establish liability. In a defamation case, the defendant seeking summary judgment could point out that the supposedly defamatory allegations have the virtue of being true, negating the plaintiff’s case. But in the case involving Fox News, it is the plaintiff, Dominion, bringing the motion — a rare instance in which a litigant argues that there is simply no defense for the alleged defamer’s conduct.

The reason this seldom happens is that in most defamation cases, both sides can present evidence addressing such matters as whether the defendant intended to smear the plaintiff, whether the statements at issue were facts or opinions — and whether the statements were true. Here, however, Dominion’s case appears to be so overwhelming that there is a good chance the judge will rule for the plaintiff before the case even goes to trial.

In particular, Fox News has not disputed that the accusations it made against Dominion were false. (“Because Fox has zero evidence to dispute the falsity of this claim, Fox cannot raise any issue of material fact,” Dominion’s lawyers argue in their motion. “Fox already admitted that it is ‘not planning to assert the truth or falsity’ of the assertion that Dominion rigged the election at trial and does not ‘have evidence to prove’ its truth.”)

If Dominion wins its motion on this point, the judge would tell the jury that allegations aired by Fox News about rigged voting machines were false. The only issues would be whether Fox News acted maliciously. But even that might not go to the jury.

Quoting from Fox News employees’ depositions, Dominion’s lawyers begin their brief: “Fox knew. From the top down, Fox knew ‘the dominion stuff’ was ‘total BS.’ ... Yet despite knowing the truth — or at minimum, recklessly disregarding that truth — Fox spread and endorsed these ‘outlandish voter fraud claims’ about Dominion even as it internally recognized the lies as ‘crazy,’ ‘absurd,’ and ‘shockingly reckless.’”

I have never seen the issue of malice resolved for the plaintiff as a matter of law. But Dominion has mounds of evidence from depositions and documents implicating hosts, their producers and others, all the way up the chain of command to Fox Chairman Rupert Murdoch. As Dominion’s lawyers put it, “This case differs from nearly any defamation case before it. Normally plaintiffs prove defendants’ actual malice — whether they knew it was false or ‘in fact entertained serious doubts as to the truth of the statement’ — ‘by inference, as it would be rare for a defendant to admit such doubts.’ ... Here, however, overwhelming direct evidence establishes Fox’s knowledge of falsity, not just ‘doubts.’”

In ordinary litigation, you virtually never have proof of news organization employees admitting to each other that they were spreading lies. Except in this case. If the judge goes for Dominion on the question of malice, that would put Fox News, appropriately, in a different category from virtually all other outlets.

If the judge rules in Dominion’s favor on the entirety of the motion, the jury would only decide damages. Imagine a jury getting instructed: “Fox News deliberately spread falsehoods about the defendant. Now just tell us how much they must pay.” One can imagine that in such a case a jury could be inclined to award steep damages, both compensatory and punitive.

Until now, the assumption has been that Fox News’s deep pockets will protect it against any verdict. That might not be the case; the financial ramifications could be immense.

Moreover, with a finding of actual malice as a matter of law, senior Fox executives and board members might be accused in other litigation of failing to protect the company up from devastating damages and failing to disclose the enormous risk in its securities filings. Fox’s problems may only have just begun.

The lawsuit takes place at a time when conservative lawyers and judges, including Justices Clarence Thomas and Samuel A. Alito Jr., are vowing to reconsider New York Times v. Sullivan, which set up the malice standard, a high bar to reach for public figures suing to defend their reputations. Conservative critics argue that the test for malice is just too high, thereby giving media outlets too much latitude to damage individuals. (The argument is constitutionally faulty, since deliberately false speech has never been protected by the First Amendment.)

However, the Dominion lawsuit may affect the right-wing critics in two ways. First, they might finally grasp that right-wing outlets with shoddy or nonexistent journalistic standards are at more risk than their foes in the mainstream media. Bluntly put, do they want to make it easier for lots of people to sue Fox News and its ilk?

Second, the underlying argument that the malice standard makes it too hard to protect injured parties would be blown to smithereens if Fox News, a major media giant, is held liable for millions (or billions) of dollars. A robust judgment against Fox would show that it’s entirely possible to prove malice. In that sense, a verdict against Fox News may dissuade conservative courts from changing the New York Times v. Sullivan standard that protects legitimate news organizations operating in good faith.

That would be an ironic end to the right-wing echo chamber’s war on truth.