During the 2020 presidential election, multiple people made claims that the voting systems had been rigged to favor Democrat candidate Joe Biden. Several of then-President Donald Trump’s allies and associates took to various media platforms to repeat these allegations, arguing that the voting systems had been compromised and that any outcome which did not place Trump back in the White House was a result of fraud.
Dominion Voting Systems, which produces many of the electronic voting machines used in the election, apparently isn’t too thrilled about this, as the folks there have filed several lawsuits regarding these claims. It’s gotten so bad that some media outlets are keeping track of who is being sued, for how much and for what reason, like ESPN tracking the movement of NFL free agents.
The most recent suit is one that is most likely of interest to the folks reading the blog, as Dominion filed a $1.6 billion suit Friday against Fox News, alleging the company knew it was allowing lies about the election to proliferate:
In the lawsuit, Dominion argued that Fox and several of its on-air personalities elevated baseless claims about the voting company rigging the 2020 election and allowed falsehoods by their guests to go unchecked, including a wild claim that the company’s machines were manufactured in “Venezuela to rig elections for the dictator Hugo Chávez” and that Dominion’s algorithm manipulated votes so that then-President Trump would lose.
“Fox engaged in this knowing and reckless propagation of these enormous falsehoods in order to profit off these lies,” reads the lawsuit. “Fox wanted to continue to protect its broadcast ratings, catering to an audience deeply loyal to President Trump.”
The lawsuit argues that there are actual damages to the company’s brand, but also to the workers who are just trying to make a living. The suit notes that Fox’s conduct not only will cost the company more than $600 million in the next eight years, but also that front-line workers have been threatened.
Fox has noted that it will defend itself, having already filed several motions to dismiss and that the company “is proud of our 2020 election coverage, which stands in the highest tradition of American journalism.”
Here are a few things to take away from this and several other lawsuits filed in regard to the voting systems:
A FREE PRESS IS NOT A CONSEQUENCE-FREE PRESS: A lot of folks misinterpret the First Amendment to mean you are protected against all sorts of things when you publish content. The truth is that all the amendment guarantees is that the government shall not prevent you from publishing material. That’s basically it.
It doesn’t mean that other people can’t stop you, like the owner of a website where you post content, the publisher of a newspaper or a producer at a broadcast station. It also doesn’t mean you can get away with whatever you want without paying the price.
When you say something that is false and harmful, you can be in a lot of trouble, which is why professors push so hard on students to make ABSOLUTELY SURE on every fact in a story. It’s also why editors pick and pick and pick at stories with reporters, as to avoid any potential landmines.
If I get up on Fox News and tell the world that I have information supporting the notion that the chancellor of my university is running a cocaine ring out of the student union in exchange for getting away with a murder he committed in 1987, I’m going to be in a HECK of a lot of trouble because it’s not true and it’s going to harm him.
It also leads to the second point…
UNLIKELY, UNREAL AND COMPLETELY UNBELIEVABLE ARE ALL DIFFERENT THINGS: One of the dumber defenses in a Dominion suit is that of former Trump lawyer Sidney Powell. The company is suing her for $1.3 billion, arguing she knowingly spread a baseless claim that Dominion and another voting system company were working with the late Hugo Chavez of Venezuela to rig the election.
It was just conjecture. No reasonable person would conclude those allegations were true statements of fact. Besides, in heated political arguments, people tend to exaggerate. You should dismiss the lawsuit or at least move it to my home state.
That’s essentially the defense offered by Sidney Powell’s lawyers to the $1.3 billion defamation lawsuit brought by Denver-based voting Dominion Voting Systems, Inc. Dominion provides voting equipment to more than 1,300 jurisdictions in 28 states including Colorado.
We’ve talked about this kind of claim earlier this year when porn mogul Larry Flynt died. The “no reasonable person” defense was at the core of his Supreme Court appeal, when the Rev. Jerry Falwell sued Flynt for publishing a spoof advertisement involving him. Flynt won the appeal with a unanimous decision, but before Powell pops open the champagne, I’d consider these issues:
- Flynt was publishing a porn mag, known for all sorts of really outlandish stuff, including a photo of a woman being stuffed into a meat grinder. Powell was on nightly news outlets and other media platforms purporting to deliver truthful information gathered from inside sources.
- Flynt’s ad claimed that the highly religious Falwell lost his virginity by having sex with his mother and a goat in an outhouse, which is almost the textbook definition of outlandish. Powell was claiming election fraud, something other countries had experienced and something that people within the government were also stating as fact.
- Flynt was a strip-club owner who published pictures of naked people in magazines that had been banned in multiple cities. Powell had been a counselor to the president of the United States.
When it comes to the idea of hyperbole and satire, or otherwise outlandish things, you have a pretty high bar to clear if you want to be on safe side of that argument. Had Flynt claimed that Falwell stole money from his congregation, he would have likely been on much shakier ground, given that other high-profile preachers had been accused or convicted of such things. The same thing could be said had he claimed Falwell had slept with prostitutes or committed adultery, given the climate of the time. However, nobody reading the Campari spoof thought, “Wow! Reverend Jerry is a really kinky guy! Guess you learn something new every day…”
Powell’s defense in this case is that nobody could have believed a legal expert who worked with the president in regard to voting irregularities when she said the company responsible for voting reliability failed in its task. I’m really interested to see how that plays out, but more out of morbid curiosity to see if the judge can keep a straight face throughout the trial, not because it’ll set a new precedent.
THE MUDDLING OF OPINION AND FACT IS ALWAYS A CONCERN: When I teach basic media writing to students, one of the hardest things for them to figure out is what is an opinion and what is a fact. It often comes down to me scrawling “SAYS WHO?” on their paper 183 times before they understand what they can say and what they shouldn’t say. Occasionally, we would have the discussion of “You are wearing a black shirt. That is a fact. You are wearing a NICE black shirt. That is my opinion.”
Cable news organizations have long muddied the waters of what is opinion and what is fact, almost to the point where people either don’t know the difference or don’t care as long as it matches up with what they believe. I often wonder if a lot of high-profile people end up buying their own BS to the point that they themselves think, “If I believe it, it must be true.”
Journalism pushes harder on people to verify information, clarify where the information originated and remain rigorous in reporting only what we can prove. At least, that’s the goal we have in mind when it comes to separating opinion from fact.
To help us clarify the distinctions a bit better, the U.S. Court of Appeals offered a four-step examination as part of its ruling in Ollman v. Evans (1984) to help people see if a statement falls into the realm of fact or opinion:
Can the statement be proved true or false? Courts have held that factual statements can be proved true or false. A statement like “The New York Yankees have won 27 World Series championships” can be proved true or false by examining their records in the annals of baseball. The truth or falsity of a statement like “The New York Yankees are the best baseball team ever” cannot be determined, because it lacks several key elements for us to examine. In a defamation case, the plaintiff must prove that the material is false, and this can be the case only if the material of a factual, as opposed to an opinion-based, nature.
What is the common or ordinary meaning of the words? People often use euphemistic language in their daily discourse. If you referred to a sloppy person as a pig, that person might be upset, but they can’t win a libel suit by demonstrating that they are not “an omnivorous domesticated hoofed mammal with sparse bristly hair and a flat snout for rooting in the soil, kept for its meat.” The common meaning that the person has poor personal hygiene or fails to keep their home neat and clean is clearly the way in which most people would interpret that remark.
What is the journalistic context of the remark? Who is saying something and the way in which they are saying it matter greatly in determining if something is a fact or not. For example, if you’re telling a joke involving two men walking into a bar, people are clearly expecting something different than if you are testifying in front of Congress. Content published on the news pages of a legacy media outlet is contextually different from a series of blog posts on a goofball-based website that would make the staff at the National Enquirer roll their eyes. The statements made on air during a newscast are contextually different from those made on a “morning zoo” radio show.
What is the social context of the remark? Where we tend to see opinions and where we tend to see facts often help define which are which. For example, a lecture on the biology related to procreation is expected to be based in facts, while two groups of protesters confronting each other outside an abortion clinic will be a more heated and opinionated exchange.