Dominion's case against Fox News goes to trial this week. Is the First Amendment really on the line?

• Fox News claims Dominion's $1.6 billion defamation lawsuit poses a grave threat to free speech.

• Some First Amendment experts worry a Dominion victory could erode legal protections for the press.

• Others think it's important for the media to lose sometimes — especially in this case.

Lawyers love bombast. In any court case, it's common for attorneys to argue that the stakes for their client are so high, it would be a devastating injustice for a judge or jury to rule against them. But even by the standards of the profession, the language in Dominion's $1.6 billion lawsuit against Fox News has been downright apocalyptic.

In public statements and legal filings, Fox has said Dominion's litigation is an "unprecedented assault" on the Constitution.

"This case is a profound threat to the First Amendment, and it should be rejected in its entirety," lawyers for Fox News wrote in a filing urging a judge to dismiss the case, calling Dominion's argument "an extreme view of defamation law that no court could or should sanction."

Dominion, for its part, said it "paid the price" for Fox News' lies as the network threw democracy itself to the lions for the viewership ratings.

"Fox knew the truth. It knew the allegations against Dominion were 'outlandish' and 'crazy' and 'ludicrous' and 'nuts,'" Dominion Voting Systems' lawyers wrote in a filing, quoting texts and emails obtained from Fox News hosts and producers. "Yet it used the power and influence of its platform to promote that false story. Fox knew better."

Among experts on free-speech law, opinions run hot.

There is the larger camp that thinks Fox ought to lose — badly — and has only itself to blame.

But there are others who say, as loath they are to defend Fox News, that the bastion of right-wing politics has a point.

A victory for Dominion against Fox, they say, could wreak havoc for other journalism organizations across the country.

"Many people feel conflicted because — and I'm not necessarily saying this is my view — but a lot of people really hate Fox News, and they hate what Fox News does and what it stands for, and they would like to see it get its comeuppance," Jane Kirtley, the former executive director of the Reporters Committee for Freedom of the Press, told Insider. "And I absolutely understand those feelings."

"But," she added, "I think there are legitimate risks going forward with this."

Judges are not editors

After President Donald Trump lost the 2020 presidential election, he tried to change reality by turning to arguably the two dimmest lights in conservative jurisprudence: Rudy Giuliani and Sidney Powell.

The ardent Trump champions spun up a false conspiracy theory arguing that Dominion and a rival technology company, Smartmatic, had convoluted connections to the dead Venezuelan president Hugo Chávez and were in cahoots with each other to flip election results from Trump to now-President Joe Biden. The Fox News hosts Jeanine Pirro, Maria Bartiromo, and Lou Dobbs brought Giuliani and Powell on their shows to share their theory with millions of viewers.

Lawsuits from Powell and Giuliani trying to overturn election results failed in court, but not with the GOP base. In a September Monmouth University poll, a majority of Republican respondents said they believed Biden didn't legitimately win the election.

Dominion sued Fox and the hosts in March 2021, arguing that the hosts didn't sufficiently push back against the false claims and sullied its reputation. The company asked for $1.6 billion in damages. (Dominion separately has pending defamation lawsuits against Powell and Giuliani, who have also been sanctioned for their false claims about the election. And Smartmatic has a whole bunch of other lawsuits.)

The trial is set to begin Monday and last for up to six weeks. For Fox, the facts look bad. The network has argued its employees were simply reporting on explosive claims made by a sitting president. But in March, Delaware Superior Court Judge Eric Davis, who's overseeing the case, handed Dominion a major victory by ruling it was "CRYSTAL clear" (capitalizations his) that all of Fox News' statements about Dominion were false and that Fox did not conduct "good-faith, disinterested reporting."

Davis said the evidence against Fox was so overwhelming, a jury needed to decide only three issues: whether its parent company, Fox Corp., should also be liable, how much Dominion suffered in damages, and — most importantly — whether Fox acted with "actual malice," which would mean it intentionally ignored the truth while broadcasting falsehoods.

An Achilles' heel for Fox's defense, the First Amendment attorney James Goodale said, is just how frequently Powell and Giuliani were invited as guests and given space to promote lies. Not to mention frequent appearances on Fox News from Mike Lindell, who advanced a separate, even more convoluted set of conspiracy theories about Dominion.

"In an ordinary libel case, that probably would happen once, and you fight over that one instance," Goodale told Insider. "In here — I don't know, what's the number, a hundred? — it happens over and over and over again."

Kirtley, now a media-ethics and law professor at the University of Minnesota's journalism school, remains leery about the ramifications of Fox News losing the case.

She doesn't defend Fox News on grounds of journalistic ethics. Having liars come on your show to spout more lies is not a recipe for great journalism. But that's an editorial judgment best left to journalists, not courts, she said.

Having judges get involved in these questions would open a can of worms, Kirtley said, where courts could pick through the guts of newsrooms and make up their own standards about what's OK and what's not.

If Dominion gets its way, she said, repeatedly having certain guests on a show could amount to "endorsement" of their views, depriving newsrooms of legal defenses.

"That's going to be a complicated question to sort out: What constitutes an endorsement?" Kirtley said. "If you have Sidney Powell on 30 times, is that an endorsement? If you have her on twice, is that an endorsement? I don't know. And I really get nervous about courts trying to parse those kinds of editorial decisions down the road."

Bill Barr, who was Trump's attorney general from 2019 to 2020, has said he believes Fox was well within the bounds of the First Amendment and claims to worry that defamation liability would chill the press. (Barr's concern for a free and vigorous press was not as evident during his tenure in office, during which he oversaw leak investigations that involved seizing journalists' records.)

Among First Amendment experts who don't work for Fox News or didn't work for the Trump administration, Kirtley is something of an outlier in her anxiety over the case.

But even those who think Fox ought to lose worry that outcome could open the floodgates to more lawsuits against news organizations.

Opening the can of worms and peering into the internal machinations of the editorial process make up an ugly process, even if it's justified in litigation. George Freeman, the executive director of the Media Law Resource Center, said he didn't want plaintiffs to conduct "fishing expeditions" inside newsrooms.

"To some degree where it's really necessary, yes, the plaintiff is entitled to learn something about the journalistic process that went into the story," he told Insider. "That shouldn't mean that it's open season on journalists and they should have to give over everything about how the story was put together if it has no bearing on the 'actual malice' question."

Is Fox News news?

In this case, the can has been opened.

It contains, well, worms.

Hundreds of pages of depositions, emails, and text messages made public in court filings show Fox News producers, executives, and hosts acting in ways that are totally alien from what you'd expect in a normal journalism organization.

Goodale — who spent decades representing The New York Times, CBS, NBC, and other news organizations in court — said Fox's favoritism was "exceptional."

"We have the anchor people, and the owner, and the candidate — they're all in the same fan box," he said.

"It's very, very unique where you have the network is not disconnected from Trump, either through its reporters or through its ownership," Goodale added. "And when it becomes a handmaiden of a political figure, it's going to get into difficulties."

Fox News appeared anxious about the rise of Newsmax, a further-right media organization that more loudly embraced Trump's voter-fraud claims, and which Trump embraced, in turn. Fox was driven, Dominion argues, by its desire to crush Newsmax and avoid Trump's wrath.

"What [Trump]'s good at is destroying things," Tucker Carlson said in a text message obtained by Dominion. "He's the undisputed world champion of that. He could easily destroy us if we play it wrong."

In a group chat, three of Fox's most popular hosts — Carlson, Sean Hannity, and Lara Ingraham — said Powell's claims were absurd. They were slow to accept Biden's electoral victory anyway.

Carlson said in a text message that Fox News correctly calling Biden's electoral victory in Arizona was "destroying our credibility" and tried to get a reporter fired for fact-checking Trump on Twitter. Suzanne Scott, Fox News' CEO, said viewers would be "disgusted" by the reporter's tweets after Hannity sent them to her. In a deposition, Fox Corp. Chair Rupert Murdoch said that as Trump pushed lies about the 2020 election, he took care to figure out a tone that wouldn't antagonize the president.

"He had a very large following, and they were probably mostly viewers of Fox, so it would have been stupid," Murdoch said.

Abby Grossberg, a producer for shows hosted by Carlson and Bartiromo, even filed a lawsuit against Fox News alleging company lawyers coached her into giving false answers in her deposition for Dominion's suit. She said in court filings that not all Fox News producers could be trusted.

"They're activists, not journalists and impose their political agendas on the programming," she said.

(Fox News fired Grossberg after she filed her lawsuit and said it was "riddled with false allegations.")

At the same time, Dominion sent thousands of fact-checking emails to Fox News staff. One executive said he received the emails so many times, he had the text "tattooed on my body at this point."

All this evidence raises the question of "whether we're talking about journalism in this particular case" at all, Goodale told Insider.

"I think that when you have the principals who have the nighttime slot saying that the audience isn't getting what it wants, that's not journalism to me," Goodale said. "That's entertainment."

The sheer closeness between Trump and Fox News makes a case like this unlikely to harm journalism organizations down the line, Goodale said.

"The facts are so bad that if they get whammed for it, I'm not sure that's so chilling," Goodale said.

Sullying Sullivan

Goodale led The New York Times' legal department way back in 1964, representing the paper when the Supreme Court decided New York Times v. Sullivan, perhaps the most important free-press case in modern history and the granddaddy of modern libel law.

The Sullivan ruling underpins the legal issues in Dominion's lawsuit against Fox News. To find Fox News liable, a jury must find it acted with "actual malice," a legal standard the court defined as "with knowledge that it was false or with reckless disregard of whether it was false or not."

This strong First Amendment protection, Goodale said, gives the US the "robust press" it's known for. The Supreme Court gave political speech particularly strong protections, recognizing muscular debate as part of the lifeblood of a healthy democracy.

"Political speech enjoys the highest level of protection," Kirtley told Insider. "And to the extent that Fox can keep hammering away at that argument, I think that that's a very strong defense."

What Fox News did, Dominion says, simply isn't protected by the First Amendment.

"As long-settled law makes clear, the First Amendment does not shield broadcasters that knowingly or recklessly spread lies," a spokesperson for Dominion told Insider. "The Court has rejected Fox's First Amendment 'newsworthy allegation' defense and held that Dominion's lawsuit is consistent with the First Amendment."

The "actual malice" standard has been refined and tweaked over the years, but it remains "an extraordinarily high bar," according to Frederick Schauer, a leading First Amendment scholar and professor at the University of Virginia School of Law.

Even when juries sympathize with people who were defamed and rule against media outlets, those decisions are often reversed upon appeal, he said.

"People who sue the media lose," Schauer said.

The vast majority of defamation cases against media organizations are settled, which gives few high-profile precedents to the Dominion lawsuit. And Murdoch is certainly no stranger to settling cases. A Washington Post analysis found that over the past 13 years, his companies paid out nearly one-quarter of a billion dollars in settlement funds, including for allegations of sexual harassment and hacking.

Maybe the media needs to lose sometimes

Free-press advocates worry the Dominion case might give the Supreme Court an excuse to revisit the "actual malice" standard. Ironically, the political right has tried for decades to make it easier to sue news organizations, with some arguing the standard has allowed the proliferation of what they see as liberal bias in the media.

Gov. Ron DeSantis of Florida and the state's Republican-controlled House have proposed a bill that would make it easier to sue journalists and that they hope would "tee up a court case" to challenge Sullivan. Trump, as president, frequently complained about stringent libel-law standards and has filed numerous lawsuits against news organizations. Former Gov. Sarah Palin of Alaska, who filed her own failed lawsuit against The New York Times, has said she thinks her appeal may be a vehicle to challenge Sullivan. And in dissents, two right-wing justices of the Supreme Court, Clarence Thomas and Neil Gorsuch, have criticized the Sullivan ruling and called for knocking down the "actual malice" standard.

Ever since Trump appointed Amy Coney Barrett to the Supreme Court, it has taken a hard turn to the right, with a 6-3 conservative majority, and has been happy to overturn long-standing precedents. Under these conditions, Kirtley said, tinkering with New York Times v. Sullivan will be "almost irresistible."

"As much as I might think that Fox's editorial standards are lamentable and that they don't seem to operate under any kind of ethical principles that I would recognize, the point is that if they don't get the same protection that a New York Times, Washington Post, or Business Insider would get, then that means nobody's going to get it," Kirtley said.

Goodale — even though he was one of the attorneys who fought for the 9-0 Sullivan ruling at the Supreme Court — thinks the current court chipping away at the "actual malice" standard "wouldn't be so bad" for the press.

"We don't want media companies to get sued successfully, but no one's ever maintained that the rule that applies here is absolute," he said.

Freeman, the executive director of the Media Law Resource Center, thinks otherwise. The Sullivan standard, he said, is what makes the free press free.

"It would really be a bad thing if 'actual malice' was tweaked in an anti-press direction," he told Insider. "I mean, it's worked for 50 years now, and there's no reason why it shouldn't continue to work."

And then there are the other risks of a big libel judgment against a media organization.

Other plaintiffs are likely to get more aggressive in filing suits against journalists. Journalists, knowing there's a greater chance they'll be sued, and a real chance they'll lose, may become "timid" about the questions they ask the powerful and rich, Goodale said.

"You'll not have a robust press," Goodale said. "The more lawsuits you have that are serious ones, the less robust the press becomes, just because it scares the hell out of reporters."

For Schauer, it's important for media organizations to lose sometimes. The Supreme Court set a high bar in libel cases but not "an absolute preclusion of liability."

"The risk of killing political debate is real and important. The risk of poisoning that debate by intentional falsity is also a great risk," he said. "And that's the balance that the Sullivan court strike tried to strike in 1964. It's still an issue. Falsity is harmful."

Social media and the internet, he said, have supercharged the proliferation of falsehoods. While media organizations may insist on the greatest protections possible for themselves, he said, it's fair to balance those priorities against dangers like viral misinformation.

"The cascade effects of falsity are likely to be greater than they were in 1964," Schauer said. "So when the court in 1964 is balancing press protection against reputation protection and democracy protection, they were doing it under different empirical conditions."

For his part, Davis, the Delaware Superior Court judge, doesn't seem to have much patience for falsity.

In a pretrial ruling shortly before jury selection, he limited the "newsworthiness" defense.

While Fox News employees will be allowed to testify that they brought Powell and Giuliani on their shows because they thought their claims about Dominion rigging the election were newsworthy, Davis barred Fox's legal team from telling the jury that "newsworthiness" was an absolute defense.

"Just because someone is newsworthy doesn't mean you can defame someone," he said.

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