Free Speech

The Fox-Dominion Lawsuit Shows That Mike Lee Is Wrong About Defamation

The 1964 Supreme Court decision New York Times Co. v. Sullivan makes it more difficult for public figures to prove defamation—but as we saw this week, not impossible.

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Sen. Mike Lee (R–Utah) at a Senate Judiciary committee meeting. He is holding his glasses in one hand and looking off to the side. | Tom Williams/CQ Roll Call/Newscom
(Tom Williams/CQ Roll Call/Newscom)

A report from ProPublica published earlier this month claimed that Supreme Court Justice Clarence Thomas had received free trips aboard yachts and private jets from billionaire real estate developer Harlan Crow. The fallout from that story has led to a robust debate over whether American defamation law is too protective of people who publicly say nasty things about famous people.

Thomas said in a statement that Crow is a close friend who "did not have business before the court." Progressives have nevertheless claimed that Thomas is Harlan's lackey, with Brett Edkins, managing director of policy and political affairs for progressive advocacy group Stand Up America, saying that "Justice Thomas' vote on the Supreme Court is bought and paid for by right-wing billionaire Harlan Crow."

On April 18, Sen. Mike Lee (R–Utah) characterized the criticism of Crow and Thomas as defamatory and blamed "a Supreme Court ruling from 1964" for the fact that "public figures have essentially no recourse when the media defame them."

Lee refers to New York Times Co. v. Sullivan, a landmark First Amendment case that established legal standards for defamation. Sullivan found that to defame a public figure, a speaker must show "actual malice," meaning they possessed "knowledge that it was false or with reckless disregard of whether it was false or not." Subsequent cases further expanded the definition of a public figure to include not just elected officials but anyone of "pervasive fame or notoriety" or even people or entities who become part of a public controversy.

Many conservatives have advocated either weakening or ending Sullivan. Thomas himself has long been critical of the "actual malice" standard and has frequently written that the court should "revisit" the case.

For supporters of free speech, Sullivan is a good precedent: The case stemmed from an ad in The New York Times criticizing an "unprecedented wave of terror" carried out by racist police and private citizens against Martin Luther King, Jr.

The Times lost the case based on a few minor factual inaccuracies and exaggerations in the ad. The Alabama Supreme Court upheld the verdict, but the U.S. Supreme Court unanimously overturned it. Delivering the Court's opinion, Justice William Brennan defended the principle that "debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

So Lee is correct that Sullivan makes it more difficult for public figures to recoup damages for defamation, but it's not impossible. Just hours before his tweets, Dominion Voting Systems settled its defamation lawsuit against Fox News for $787.5 million. The lawsuit alleged that Fox had defamed Dominion by giving uncritical airtime to conspiracy theorists who falsely accused the company and its products. As part of the settlement, Fox would reportedly not be required to issue an on-air mea culpa, but it did "acknowledge the Court's rulings finding certain claims about Dominion to be false."

Before the trial, Fox expected to be protected from liability by the Sullivan standard. But as Reason's Jacob Sullum wrote in March, "Dominion tells a plausible story, backed by internal communications, that Fox continued to host 'crazy' conspiracy theorists because it had a financial interest in doing so," and while the standards necessary to prevail at trial would be "a very tough test, Fox's lame excuses provide reason to believe that Dominion can meet it."

Lee may be upset that his political allies have to put up with intemperate speech. Still, America's legal framework is sufficient to allow public figures recourse for actual defamation. As the Cato Institute's Walter Olsen wrote, the Fox-Dominion settlement "shows that while Sullivan may be speech‐​protective, it did not then and does not now eviscerate common law rights to sue for defamation."