Defamation vs. Hyperbole
April 2021 | Sherry Young, Staff Writer/Editor
For many years, the media has enjoyed a broad definition where the applicability of Freedom of Speech is concerned, but Freedom of Speech does have its limitations. When Freedom of Speech is abused, defamation is the key to addressing false statements. The elements required to prove defamation may vary, but generally consist of four elements discussed below. The burden of proof is different for public figures and private individuals. Journalists and broadcasters, like Fox News, open themselves to defamation lawsuits by making reckless statements. This article will explore the lawsuits filed by Smartmatic and Dominion against Fox Corporation, Sidney Powell, Rudy Giuliani, and several Fox correspondents in the wake of the triumph by Fox in the lawsuit filed by Karen McDougal. The outcome of the Smartmatic and Dominion lawsuits will likely impact the way journalists and broadcasters present news that may overreach the limits of truth or hyperbole.
The right to Freedom of Speech is not without limitations and consequences, even for the media.
The Constitution has always held Freedom of Speech as an important right, founded upon philosophical concepts inspired by John Stuart Mill. The idea that the media benefits from unconstrained Freedom of Speech has been the subject of many judicial opinions. In 1919, Supreme Court Justice Oliver Wendell Holmes Jr. issued the infamous dissenting opinion in Abrams v. United States about the importance of “free trade in ideas…”[1] This was supported by Gertz v. Robert, in which the Court opined, “[u]nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”[2]
Nonetheless, Freedom of Speech is not without limitation. Certain speech, such as incitement of an action that produces an imminent danger,[3][4] obscenity,[5] and defamation are not protected. States may vary regarding the elements required to prove defamation, but most of the time plaintiffs must prove that the communications were: 1) false, purporting to be fact; 2) published or communicated to a third person; 3) fault amounting to at least negligence existed in making the statement(s); and 4) damages, or some harm caused to the person or entity who is the subject of the statement(s).[6]
Journalists open themselves to defamation when they recklessly publish false information.[7]
The burden of proof for defamation differs depending on whether the individual or entity being defamed is a private or public figure. In New York Times Co. v. Sullivan, the Court held that public figures must show “actual malice,” i.e., the media must have known its statement was false or acted with reckless disregard for the truth.[8] Courts have held failing to investigate claims prior to publishing is not sufficient to establish reckless disregard or malice;[9][10] instead, the plaintiff needs to prove the speaker possessed a “high degree of awareness of [the statements’] probable falsity.”[11] Where a private figure is concerned, the Court removed the malice requirement in Gertz, holding that private individuals lack the same communication channels to which a public figure has access and also that a private individual has not opened themselves in a voluntary manner in the same way as a public figure. Under Gertz, individuals who “assumed roles of especial prominence in the affairs of society” and who “invite[d] attention and comment” are generally considered public figures. Whether Dominion and Smartmatic are public or private figures still remains to be determined.
Courts have generally held statements must still be made in “good faith,” meaning the speaker must believe the comment is true.[12] Endeavoring to clarify the falsity of a statement from an opinion (i.e. the protected marketplace of ideas), the Court in Cianci v. NY Times opined, “[e]ven if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications.”[13]
This brings us to the current issue at hand: Smartmatic and Dominion have both respectively filed lawsuits for billions of dollars, alleging defamation against Fox Corporation, Sidney Powell, Rudy Giuliani, and several Fox correspondents. Some statements Dominion alleges as defamatory were made shortly after the November 2020 election, during an interview on Fox News between correspondent Maria Bartiromo and Sidney Powell. Powell was specifically asked by Bartiromo to talk about irregularities with regard to Dominion Software, to which she replied, “[t]hat's putting it mildly. . . That is where the fraud took place, where they were flipping votes in the computer system or adding votes that did not exist. . . That’s when they had to stop the vote count and go in and replace votes for Biden and take away Trump votes.”[14]
Similarly, during an interview on Lou Dobbs Tonight (Fox News’ highest rated show on business television), Rudy Giuliani stated that, in addition to being extremely hackable, Smartmatic was owned by Dominion and formed by three Venezuelans, who were very close to Venezuelan dictator Hugo Chávez, in order to fix elections. Dobbs ended the interview by saying “[a]nd Rudy, we’re glad you’re on the case and, and pursuing what is the truth and straightening out what is a very complicated and difficult story. And by the way, it’s not only difficult, it has the feeling of a cover up in certain places, you know, putting the servers in foreign countries, private companies, we don’t have transparency with those servers. This is, this is an election nightmare, as well as a battle.”[15] Both lawsuits allege Fox not only joined in the conspiracies by failing to fact-check the claims, but repeatedly invited Powell and Giuliani as frequent guests in the weeks that followed.
In response to a demand letter by Smartmatic, retractions were aired in December 2020 on three Fox shows, Lou Dobbs Tonight, Sunday Morning Futures, and Justice with Judge Jeanine. Certain states require retractions be requested prior to filing suit. Defendants may also have an incentive to issue retractions to try to prevent plaintiffs from being able to seek punitive damages. However, defendants may still be liable for punitive damages if malice is proven. Fox fired Dobbs a few days after Smartmatic filed their complaint.
There are several defenses to defamation: truth and opinion.
In the case against Powell, there is no possibility of defending the statements based on truth. Instead, Powell is attempting to invoke a defense, now commonly called “The Tucker Carlson Defense,” stating the statements were so unbelievable that no reasonable person would take them seriously. While this might seem like a good move for Powell, it poses some issues for Fox. Bartiromo cannot claim she was unaware of what Powell was going to say, since the question clearly asked Powell to talk about voting irregularities with regard to Dominion software prior to Powell mentioning that was her belief. Furthermore, days after the segment with Powell aired, Tucker Carlson delivered a monologue stating he made multiple requests for Powell to provide evidence supporting her claim and that she got angry and told Carlson to stop contacting her.[16] It remains to be seen whether Carlson’s monologue establishes Fox had some sort of “notice” the claims made by Powell were possibly false and whether the courts would entertain that theory under New York Times and Garrison as evidence of malice and reckless disregard.
Fox claims it was presenting “substantially correct” reporting of the claims by the President and his representatives, that it was neutral in its reporting, and, as such, is protected under the neutral-reporting doctrine issued in Florida cases, Rendon v. Bloomberg and Croce v. N.Y. Times Co.[17][18] The Fox brief also cites DeLuca v. N.Y. News Inc., “[i]f the mere fact that a statement is made is itself newsworthy, then the reporting of that statement by the press is protected expression, regardless of whether the statement is defamatory and false, and the press is not bound to verify the truth of the statement.”[19]
Sorting through Fox’s defenses is a bit like trying to figure out which part of their broadcast is actual news vs. hyperbole.
First, New York rulings have rejected the neutral reporting privilege.[20] In an interview with Erik Connolly, an attorney for Smartmatic, he explained that even if statements are couched as an opinion, if the context makes the listener or reader think there is a factual basis for it, the communication is not protected.[21] Next, Smartmatic’s opposition rejects the application of Croce v. N.Y. Times, correctly stating the opinion issued by the Court in Croce had nothing to do with the neutral reporting privilege except to say that the Ohio Supreme Court explicitly rejected the privilege. The application of Rendon v. Bloomberg applies only if the plaintiff is a public figure and is also moot based on the fact New York does not recognize the neutral reporting privilege.
With the ink practically still drying on the order granting Fox’s motion to dismiss the lawsuit filed by Karen McDougal over statements made on Tucker Carlson Tonight, it is entirely feasible to wonder whether the Federal Court’s ruling might lend insight into the future of the Smartmatic and Dominion cases. In the McDougal matter, the Court took exception to McDougal’s allegation she was defamed when Tucker Carlson said she “extorted” money from Trump. Fox defended Carlson with established case law from Hogan v. Winder which specifically provides “accusations of extortion are a familiar rhetorical device.”[22] Since the Court found the statements constituted rhetorical hyperbole, they could not be construed as defamatory pursuant to the holdings in Gross v. N.Y. Times Co. because “hyperbole is not actionable for defamation.”[23] The Court also considered McDougal a public figure and found that because there were no issues with regard to truthfulness in Carlson’s statements, McDougal was unable to prove malice.[24] The Court noted no correction (retraction) had been issued by Mr. Carlson, further lending to McDougal’s inability to prove malice.
In the Smartmatic and Dominion cases, multiple statements were made. Each complaint is hundreds of pages. Though some statements may be considered hyperbole, it will be interesting to see if Carlson’s statements doubting the strength of Powell’s claims lend any strength to the burden of proof required for malice and whether Smartmatic or Dominion are public or private figures. If Fox believes Dominion and Smartmatic have strong cases, Fox would be wise to settle out of court. For those of us curious to see how this case could affect the way the media presents unconfirmed theories or uses hyperbole, a judgment in favor of Fox would embolden the media to present any information it deems newsworthy without concern as to the veracity contained therein. On the other hand, a judgment in favor of Dominion or Smartmatic would serve as a warning that other news outlets should “air” on the side of caution.
Sources
Abrams, et al. v. United States, 250 U.S. 616, 630, 40 S. Ct. 17; 63 L. Ed. 1173 (1919).
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974).
Schenck v. United States, 249 U.S. 47 (1919).
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
Roth v. United States, 354 U.S. 476 (1957).
“Defamation,” in Legal Information Institute (Cornell Law School), accessed April 18, 2021.
Leah Easterby, “Defamation, Public Officials, and the Media,” www.nolo.com, accessed April 8, 2021.
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989).
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
Garrison v. Louisiana, 379 U.S. 64, 74 (1964).
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
Cianci v. New Times Publishing Co., 639 F.2d 54, 61 (2nd Cir. 1980).
US Dominion, Inc., et al. v. Fox New Network, LLC, No. N21-03-257 EMD.
Smartmatic USA Corp, et al. v. Fox Corp, et al., No. 0151136/2021 (n.d.).
Tucker Carlson, “Tucker Carlson Gives ‘update’ after Sidney Powell Segment Backlash,” USA Today, November 20, 2020.
Rendon v. Bloomberg, 403 F. Supp. 3d 1269 (S.D. Fla. 2019).
Croce v. N.Y. Times Co., 930 F3d 787, 793 (6th Cir. 2019).
De Luca v. N.Y. News, Inc., 109 Misc. 2d 341, 345-346, 438 N.Y.S.2d 199 (Sup. Ct. 1981).
Hogan v. Herald Co., 58 N.Y.2d 630, 458 N.Y.S.2d 538, 444 N.E.2d 1002 (1982).
Jonathan Amarilio, Trisha Rich, and Erik Connolly, “The Smartmatic v. Fox News Edition,” @theBar, accessed April 11, 2021.
Hogan v. Winder, 762 F.3d 1096, 1108 (10th Cir. 2014).
Gross v. N.Y. Times Co., 82 N.Y.2d 146, 152, 603 N.Y.S.2d 813, 623 N.E.2d 1163 (1993).
Actual malice, on the other hand, must be plausibly alleged by providing facts to demonstrate a defendant’s disregard for the truthfulness of its statements. See, Palin v. N.Y. Times Co., 940 F.3d 804, 815-16 (2d Cir. 2019).