Lawsuits Take the Lead in Fight Against
Disinformation
Defamation cases have made waves across an uneasy
right-wing media landscape, from Fox to Newsmax.
Lou Dobbs, whose show on Fox Business was canceled on
Friday, was one of several Fox anchors named in a defamation suit filed by the
election technology company Smartmatic.
Michael M.
Grynbaum
By Michael
M. Grynbaum
Feb. 6,
2021, 5:05 p.m. ET
In just a
few weeks, lawsuits and legal threats from a pair of obscure election
technology companies have achieved what years of advertising boycotts, public
pressure campaigns and liberal outrage could not: curbing the flow of
misinformation in right-wing media.
Fox
Business canceled its highest rated show, “Lou Dobbs Tonight,” on Friday after
its host was sued as part of a $2.7 billion defamation lawsuit. On Tuesday, the
pro-Trump cable channel Newsmax cut off a guest’s rant about rigged voting
machines. Fox News, which seldom bows to critics, has run fact-checking
segments to debunk its own anchors’ false claims about electoral fraud.
This is not
the typical playbook for right-wing media, which prides itself on pugilism and
delights in ignoring the liberals who have long complained about its content.
But conservative outlets have rarely faced this level of direct assault on
their economic lifeblood.
Smartmatic,
a voter technology firm swept up in conspiracies spread by former President
Donald J. Trump and his allies, filed its defamation suit against Rupert
Murdoch’s Fox empire on Thursday, citing Mr. Dobbs and two other Fox anchors,
Maria Bartiromo and Jeanine Pirro, for harming its business and reputation.
Dominion
Voting Systems, another company that Mr. Trump has accused of rigging votes,
filed defamation suits last month against two of the former president’s
lawyers, Rudolph W. Giuliani and Sidney Powell, on similar grounds. Both firms
have signaled that more lawsuits may be imminent.
Litigation
represents a new front in the war against misinformation, a scourge that has
reshaped American politics, deprived citizens of common facts and paved the way
for the deadly Jan. 6 attack on the Capitol. Fox News, for instance, paid
millions last year to settle a claim from the family of a murdered Democratic
National Committee staff member falsely accused by Fox hosts of leaking emails
to WikiLeaks.
But the use
of defamation suits has also raised uneasy questions about how to police a news
media that counts on First Amendment protections — even as some conservative
outlets advanced Mr. Trump’s lies and eroded public faith in the democratic
process.
“If you had
asked me 15 years, five years ago, whether I would ever have gotten involved in
a defamation case, I would have told you no,” said Roberta Kaplan, a lawyer who
is representing Mr. Trump’s niece, Mary L. Trump, and the writer E. Jean
Carroll in defamation suits against the former president.
Like other
prominent liberals in her profession, Ms. Kaplan had long considered defamation
suits a way for the wealthy and powerful to try to silence their critics. Last
year, Mr. Trump’s campaign sued multiple news organizations for coverage that
the president deemed unfavorable or unfair. The technology billionaire Peter
Thiel bankrolled Hulk Hogan’s suit against the gossip blog Gawker that
ultimately bankrupted the business.
“What’s
changed,” Ms. Kaplan said, “and we’ve all seen it happen before our eyes, is
the fact that so many people out there, including people in positions of
authority, are just willing to say anything, regardless of whether it has any
relationship to the truth or not.”
Some First
Amendment lawyers say that an axiom — the best antidote to bad speech is more
speech — may no longer apply in a media landscape where misinformation can
flood public discourse via countless channels, from cable news to the Facebook
pages of family and friends.
“This
shouldn’t be the way to govern speech in our country,” Ms. Kaplan said. “It’s
not an efficient or productive way to promote truth-telling or quality
journalistic standards through litigating in court. But I think it’s gotten to
the point where the problem is so bad right now there’s virtually no other way
to do it.”
Mr. Trump’s
rise is an inextricable part of this shift. His popularity boosted the profits
and power of the right-wing commentators and media outlets that defended him.
In November, when Mr. Trump cast doubt on the outcome of the presidential
election despite no credible evidence, it made commercial and editorial sense
for his media allies to follow his lead.
The Newsmax
anchor Greg Kelly refused to accept Joseph R. Biden Jr. as president-elect and
was rewarded with a surge in ratings. Fox News was more cautious — the network
declared Mr. Biden the next president on Nov. 7 — but some Fox stars, including
Mr. Dobbs, Ms. Bartiromo and Ms. Pirro, offered significant airtime to his
lawyers, Mr. Giuliani and Ms. Powell, and others who pushed the outlandish
election-fraud narrative.
In one
example cited in the 276-page complaint filed by Smartmatic, Mr. Dobbs’s
program broadcast a false claim by Ms. Powell that Hugo Chávez, the former
president of Venezuela, had been involved in creating the company’s technology
and installed software so that votes could be switched undetected. (Mr. Chávez,
who died in 2013, did not have anything to do with Smartmatic.)
Smartmatic
also cited an episode of “Lou Dobbs Tonight” in which Mr. Giuliani falsely
described the election as “stolen” and claimed that hundreds of thousands of
“unlawful ballots” had been found. Mr. Dobbs described the election as the end
to “a four-and-a-half-year-long effort to overthrow the president of the United
States,” and raised the specter of outside interference.
“It has the
feeling of a cover-up in certain places, you know — putting the servers in
foreign countries, private companies,” Mr. Dobbs said.
Fox has
promised to fight the litigation. “We are proud of our 2020 election coverage
and will vigorously defend this meritless lawsuit in court,” the network said
in a statement the day before it canceled Mr. Dobbs’s show.
Executives
in conservative media argue that the Smartmatic lawsuit raises uncomfortable
questions about how news organizations should present public figures: Ms.
Powell was a conspiracist, but she was also the president’s lawyer. Should a
media outlet be allowed to broadcast her claims?
“There’s a
new standard created out of this that is very dangerous for all the cable
channels,” Christopher Ruddy, the owner of Newsmax and a Trump confidant, said
in an interview on Saturday. “You have to fact-check everything public figures
say, and you could be held libelous for what they say.” Mr. Ruddy contends that
Newsmax presented a fair view of the claims about election fraud and voting
technology companies.
Newsmax
personnel, though, were made aware of the potential damage stemming from claims
that appeared on their shows. In an extraordinary on-air moment on Tuesday,
Mike Lindell, the MyPillow founder and a staunch Trump ally, began attacking
Dominion — and was promptly cut off by a Newsmax anchor, Bob Sellers, who read
a formal statement that Newsmax had accepted the election results “as legal and
final.”
Fox
executives revealed their own concerns in December, after Smartmatic sent a
letter signaling that litigation was imminent. Fox News and Fox Business ran an
unusually stilted segment in which an election expert, Edward Perez, debunked
conspiracy theories about voter fraud that had recently been aired on the networks.
The segment ran on three programs — those hosted by Mr. Dobbs, Ms. Bartiromo
and Ms. Pirro. (Newsmax, which also received a letter from Smartmatic, aired
its own clarifications.)
This fear
of liability has rippled into smaller corners of the right-wing media sphere.
Mr. Giuliani, who hosts a show on the New York radio station WABC, was caught
by surprise on Thursday when his employer aired a disclaimer during his show
that distanced itself and its advertisers from Mr. Giuliani’s views.
“They got to
warn you about me?” Mr. Giuliani asked his listeners, sounding incredulous.
“Putting that on without telling me — not the right thing to do. Not the right
thing to do at all.”
Yochai
Benkler, a professor at Harvard Law School who studies disinformation and
radicalization in American politics, said that the president’s lies about the
election had pushed pro-Trump outlets beyond the relatively lax standards
applied to on-air commentators.
“The
competitive dynamic in the right-wing outrage industry has forced them all over
the rails,” Mr. Benkler said. “This is the first set of lawsuits that’s
actually going to force them to internalize the cost of the damages they’re
inflicting on democracy.”
Mr. Benkler
called the Smartmatic suit “a useful corrective” — “it’s a tap on the brakes” —
but he also urged restraint. “We have to be very cautious in our celebration of
these lawsuits, because the history of defamation is certainly one in which
people in power try to slap down critics,” he said.
Martin
Garbus, a veteran First Amendment lawyer, said he was personally repelled by
the lies about the election propagated by Mr. Trump and his allies, but he also
called the Smartmatic suit “very complicated.”
“Will
lawsuits like this also be used in the future to attack groups whose politics I
might be more sympathetic with?” he asked.
Mr. Garbus,
who made his reputation in part by defending the speech rights of neo-Nazis and
other hate groups, said that the growth of online sources for news and
disinformation had made him question whether he might take on such cases today.
He offered an example of a local neo-Nazi march.
Before
social media, “it wouldn’t have made much of an echo,” Mr. Garbus said. “Now,
if they say it, it’s all over the media, and somebody in Australia could blow
up a mosque based on what somebody in New York says.
“It seems
to me you have to reconsider the consequence of things,” he added.
Michael M.
Grynbaum is a media correspondent covering the intersection of business,
culture and politics. @grynbaum
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