Later this month, the $1.6 billion dollar defamation trial between Dominion Voting Systems and Fox News will go to trial.  If the Plaintiff Dominion wins against Fox News, the result will have a huge impact on the First Amendment’s protections for journalists and media and will clear a path for individuals bring successful media claims. 

The gold standard for a plaintiff to win a defamation case against a news media defendant, is defined by whether a plaintiff can prove by clear and convincing evidence, that the news media publisher “acted with reckless disregard for the truth”. See the famous case of New York Times v. Sullivan, 376 U.S. 254 (1964).  The trick is defining what set of facts constitutes reckless disregard for the truth in each case.   

The strengths of Plaintiff Dominion’s case boils down to three core types of evidence.  1) internal communications amongst Fox executives and on-air talent, varyingly admitting that Fox knew, as an institution, that the allegations that Dominion tampered with votes to help Biden “steal” the election, were either outright false or were simply not credible; evidence showing Fox News was financially motivated; 2) that Fox News had the ability to, and often did, edit or influence the direction, type, and content of the news and headlines its on-air talent published; and; and 3) that Fox News was financially motivated to knowingly allow the publication of false accusations that Dominion committed election fraud, because its what Fox News viewers wanted to hear, and that ratings went down when Fox reported fairly and responsibly or when Fox on-air talent pushed back against the allegation that Dominion committed election fraud. 

The strength of Defendant Fox News’ case is their position that they were simply reporting the beliefs and allegations of their guests, politicians whose base, and Fox’s viewers, adamantly believe.  In other words, Fox News will argue that the First Amendment affords Fox the protection of re-publishing the false allegations and beliefs of others, if its newsworthy and a matter of public concern.  Additionally, Fox will argue that if the Plaintiff were to prevail, it would force Fox, and other news organizations, to engage in viewpoint discrimination where it censors the publication of certain allegations, based on the news media’s sole determination that certain news is worthy of publication or not. 

Plaintiff Dominion News appears to have sufficient evidence that the judge is allowing the case to go to trial, where the ultimate issue the jury will be deciding is whether Fox was simply reporting the news, or whether Fox knowingly played a part in disseminating a false narrative that injured Dominion.