Last week’s announcement of the settlement between Fox News and Dominion Voting Systems certainly dominated the popular press and the discussions among most TV pundits, highlighting the law of defamation for anyone who follows the news. While the case illustrates the principles that we have written about many times on this blog (see, for instance, our articles here and here), the settlement illustrates for broadcasters and other media companies the real risks that exist when disseminating content that is false and could harm the reputation or business prospects of any recognizable individual or group.
Most particularly, the Fox case sends the message to media companies that defamation claims against public figures are alive and well and have the potential to result in substantial liability. While the bar to a party’s success in raising such a claim remains high, it is not insurmountable. On this blog, we’ve written less about issues arising from news coverage than those that arise in connection with political advertising. The same issues that arose in the Fox case can arise in cases where broadcasters run political ads knowing or with reason to believe that they are false. Thus, our past warnings regarding the need to be vigilant in assessing non-candidate attacks on other candidates or recognizable individuals remains more important today than ever, as the Fox case has highlighted the potential path to riches some attacked individuals may see when false attack ads run on broadcast stations or other media.
As you may have observed, TV pundits have talked about this “high bar” which must be surmounted before liability can be found in defamation cases. To prevail in a lawsuit, it is not enough for a public figure to prove that the claim made on the air was false. Under the Supreme Court’s NY Times v Sullivan precedent, the public figure must also show that the false content was broadcast with “malice,” i.e., knowledge that the claim was false or broadcasting it with reckless disregard for the truth. Prior to the Fox/Dominion settlement, many pundits seemed to posit that this bar was so high that Dominion was unlikely to prevail in its lawsuits. Yet press reports certainly seemed to point to substantial evidence that there was real risk for Fox. Particularly damaging was evidence suggesting that supervisors knew that the on-air claims relating to Dominion were false but nonetheless allowed them to be broadcast repeatedly, seemingly based on the profit motive of retaining an audience that wanted to believe the false claims.
This same profit motive exists when a broadcaster or cable company is approached with an attack ad. The broadcaster or cable company also may want to head off reputational threats from the organization placing the attack ad, who can accuse them of bias should when they do not air an ad that they believe may be false. Nevertheless, when broadcast or cable companies get attack ads from non-candidate groups (which, unlike candidate ads, are not immune from censorship), they need to do their diligence to assure themselves that the claims made in the ad are legitimate, particularly when they are put on notice that the ad may be false. Once a party who has been attacked in such an ad has their attorney notify the station or cable system that the attack ad is false, the station or cable company must investigate the matter and, if the ad is indeed false, pull it from the air. As we’ve written before, this can be a case where fine lines need to be drawn, as many attack ads are carefully worded to be factually true, but by implication damning. But, where the ads are in fact false, there is real risk. The Fox case sends a warning to sales departments that companies that disseminate information that they know or have reason to believe is false can face substantial liability. Consult your lawyers when assertions of falsity arise.
In recent years, as political rhetoric has become increasingly heated, we’ve seen more situations where political candidates have brought defamation claims against broadcasters for airing false ads. We saw, for example, President Trump sue a TV station in Rhinelander, Wisconsin, for claims made in national attack ads on his handling of the coronavirus pandemic. While Trump eventually dismissed the lawsuit, substantial legal fees were no doubt incurred. In the last election cycle, Evan McMullen sued several TV stations that refused to pull an ad that had edited some of his statements on CNN into an ad making him look like he accused all Republicans of being racist, when that was not what he in fact said. Even Roy Moore, the unsuccessful candidate for Senate in Alabama, pursued a lawsuit against one of the distributors of an attack ad that accused him of improper conduct with an underaged woman, which apparently did not happen with the identified individual.
Again, remember that candidate ads on broadcast and local cable cannot be censored, so there is no liability to the station or system that runs them. But ads by noncandidate groups do not share that immunity, and thus stations and systems can be liable when they air such ads if they are shown later to be false. The Fox settlement has, in effect, publicized the law of defamation, and thus may embolden those attacked in political ads to seek their own revenge when those attacks are untrue. Plus, as we’ve noted here, certain Supreme Court justices have even argued that it should be easier for public figures to bring defamation claims. Thus, it is wise to exercise care in vetting all political ads disseminated by your company, especially where there are suggestions that the material may be untrue.
Courtesy Broadcast Law Blog