Fox News last month agreed to fork over nearly $800 million in its settlement of a defamation lawsuit with Dominion Voting Systems. Dominion claimed Fox defamed the company with supposed disinformation about its role in the 2020 election. The lawsuit was set to go to trial before Fox settled in fear of an even larger judgment and the negative publicity of Rupert Murdoch, Tucker Carlson, and Sean Hannity testifying in open court. The lawsuit possibly influenced the network to cut ties with Carlson over fears of future litigation.
The whole affair demonstrates how conservatives can be sued for dubious reasons and lose big thanks to the current legal system.
Defamation law has proven to be an effective weapon for the Left. Yet, many conservatives want to aid the Left’s mission by loosening defamation laws. They somehow believe this change would help ordinary people strike back at the mainstream media. In reality, it would lead to more Dominion-style lawsuits and likely spell the end of independent right-wing media.
The high standard for libel was established in 1964 with the U.S. Supreme Court’s ruling in New York Times v. Sullivan. At least two current Supreme Court justices believe that decision should be overturned. Clarence Thomas said in a 2019 opinion that Sullivan is “a policy-driven decision . . . masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own” rules. Neil Gorsuch argued in 2021 that the case’s “actual malice” standard “evolved into a subsidy for published falsehoods on a scale no one could have foreseen.” He added that it has inspired journalism “without investigation, fact-checking, or editing.”
A large number of conservative commentators share these views. Daily Wire personality Michael J. Knowles recently argued that 2024 Republican presidential candidates “should make the overturning of NYT v. Sullivan a plank of his policy platform.”
Florida Governor Ron DeSantis effectively endorsed this view by holding a roundtable in February on reforming defamation laws to favor plaintiffs. Participants included Dominion lawyer Libby Locke, who DeSantis praised as an attormey “extraordinaire when it comes to First Amendment defamation.” Locke’s law firm worked on litigation against Fox News and MyPillow chief Mike Lindell. DeSantis didn’t seem bothered by this as he argued for more lawsuits against the media. “We’ve seen over the last generation legacy media outlets increasingly divorce themselves from the truth and instead try to elevate preferred narratives and partisan activism over reporting the facts,” the governor said.
Conservatives assume that overturning Sullivan would let people like former Covington Catholic High School student Nick Sandmann (another participant at DeSantis’ roundtable) and Kyle Rittenhouse deliver justice to the mainstream media. They think conservative media wouldn’t be affected at all. They couldn’t be more wrong. Conservative media would be the primary victims of this change.
Under the current standard, Dominion was able to wring a massive settlement out of Fox News just for covering what Republicans were saying about the voting system company. Prior to this settlement, Dominion forced Fox competitor Newsmax to settle and apologize for covering those same claims. These settlements will certainly scare these outlets from covering some controversial topics in the future. They don’t want to risk paying millions or hundreds of millions of dollars simply for reporting on a news topic.
These aren’t the only victims of the Left’s weaponization of defamation law. Alex Jones owes nearly $1.5 billion over allegations he made in the wake of the mass shooting in 2012 at Sandy Hook Elementary School. His civil trial demonstrates how the judicial system can screw anyone with right-leaning views. Jones was essentially put on trial for being Alex Jones. The judge refused to hide her contempt for Jones. The plaintiffs’ lawyer conducted a show trial of the InfoWars host with the assent of the court. Considering the liberal area where the trial took place, Jones had no hope of prevailing. Despite his retraction and apology for his Sandy Hook remarks, he was ordered to fork over an astronomical amount. This is how conservatives fare in the modern legal system.
More conservatives could face the Alex Jones treatment if we loosen libel laws. The Left has a ready-made infrastructure to wage lawfare on the Right. There are dozens, if not hundreds, of lawyers lined up to sue conservative figures and media outlets. These lawyers usually rank at the top of their field. A good number of them would take cases pro bono because they believe in the cause so much. Money would likely not be a problem, either. The Left does an incredible job of fundraising for its lawfare. See the Charlottesville civil trial. Judges would openly side with plaintiffs, as Alex Jones learned to his chagrin.
Conservatives simply lack that ready-made infrastructure, so they rely on a Dominion lawyer suing conservatives to make the case against Sullivan. Their mainstream targets have deep pockets to hire the best defense lawyers in these cases. Less wealthy leftists get top-notch pro bono defamation defense. Most right-wing media outlets and figures don’t have the money and connections to find the necessary legal talent if they’re sued. Even if conservatives defeated a lawsuit, they would be drained of resources.
That would be the whole point. The organized Left would dedicate much of its energy and resources to putting conservative media out of business. There would be ample opportunity to do so with changed laws. They could focus on outlandish claims made by several conservative personalities, such as Buffalo Bills safety Damar Hamlin being replaced by a clone. Or a liberal Democrat could claim that the assertion she supports “open borders” or defunding the police is defamatory and actionable. Looser standards would encourage more frivolous lawsuits. Conservative sites can’t afford to direct their limited resources to fend off every legal challenge to their coverage. Liberals know that and would use such knowledge to their advantage.
However satisfying it may be to sue the Washington Post and CNN for calling conservatives racist, the likely result of overturning the Sullivan decision won’t be that. Those same outlets would still be able to demonize the Right while the Right’s news sources would be bankrupted through litigation. Instead of a return to “truth,” only the voice of corporate media will be heard.
The Right needs to remain focused on protecting our right to speak freely and not chase false hopes we can ruin our enemies through the American legal system. Our most important objective is to spread the truth to the world. The mainstream media can’t be forced by a court to report the news the way we want. Hysteric criticism from the press is the price to be paid for speaking truth to power. Right-wingers can always expect to be attacked in mainstream outlets. As long as we have the freedom to respond back without the threat of censorship or ridiculous lawsuits, then let them criticize away.
The motivation to end New York Times v. Sullivan is understandable. It’s good we want to hit back at media smears, and, in a perfect world, we would be able to hold those yellow journalists to account. But we don’t live in that world. We live in a world where the legal system and powerful institutions want to shut down right-wing speech for good. The First Amendment stands as a bulwark against this menace. We shouldn’t assist our enemies in chipping away at it. For all its faults, a high standard for defamation protects conservative speech. And that’s why we must keep it.