Walt Rubel Commentary: Free speech will survive Fox lawsuit

In 1981 Sally Field won a Golden Globe for her portrayal of an ambitious and reckless newspaper reporter in the film “Absence of Malice.”

The reporter uses information leaked by a federal prosecutor for a front-page story wrongfully accusing the character played by Paul Newman of the murder of a union boss. The evil newspaper gets away with it because of a 1964 Supreme Court ruling.

The film’s title comes from the standard set in the case of New York Times Co. v Sullivan.  Former Public Safety Commissioner L.B. Sullivan successfully sued the Times when it refused to retract an advertisement that criticized his department, and contained some inaccuracies. 

The Supreme Court ruled that the libel standard for public officials like Sullivan is higher than for everyone else. The new standard required “actual malice,” which the court defined as either knowledge that the statement was false, or a reckless disregard for the truth.

The law was later expanded to include anybody who was in the public eye, not just government officials. 

That ruling has served the media well. It provided a level of certainty that did not exist when libel and slander were governed by various state laws. Now, some free-speech advocates are concerned that the 1964 ruling could be weakened by the $1.6 billion lawsuit against Fox News by Dominion Voting Systems, which began this week.

The pretrial hearings and rulings have not gone well for Fox. Judge Eric Davis has already ruled that the claims made by Fox about the voting machines were not true. All the jury has to decide is the issue of malice, and there is ample evidence that the network made an intentional decision to stick with the lie rather than risk further angering viewers who were already outraged that Fox was the first network to correctly call Arizona for Joe Biden on election night.

We don’t have to look far to see the damage done by those lies. Last year, our wacky neighbors to the east in Otero County refused to certify their election results because the county used Dominion voting machines. Those same machines had been in use for years without a peep of protest. We all know what changed.

I should add here that far more outrageous lies have been, and continue to be spread on social media, without any accountability whatsoever. That’s because of a 1996 federal law commonly known as Section 230, which says Internet providers can post anything they want, as long as they didn’t create it.

While I cherish free speech, I don’t think our nation has been well served by government protection of calculated lies that are intended to cause real damage.

Fox News did real damage to another private company, and should be held monetarily responsible for the harm it caused. 

That corporate juggernaut will likely survive whatever judgment is rendered. And even if they don’t, there will be another conservative network to take its place. We have become a country of news viewers who value predictability and confirmation over enlightenment. That isn’t going to change.

But even within that new reality there still needs to be some guardrails.


Walter Rubel can be reached at [email protected]

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