‘This Is Wild Stuff!’ First Amendment Expert David French Doesn’t See Fox-Dominion Trial as ‘Threat to Free Speech’
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As a media circus descends on Wilmington, Delaware this week to cover the blockbuster trial for Dominion Voting Systems’s $1.6 billion defamation suit against Fox News — myself included — an uncomfortable question lingers in the air: Should the press be rooting for a private company to beat a major media outlet in a defamation case?
For David French, the Fox-Dominion trial is not the threat to free speech that some analysts fear.
French, a former lawyer with a focus on the First Amendment who now serves as a columnist for the New York Times, spoke with me about the media trial of the century on the latest episode of The Interview.
The mountain of evidence that was made public before the trial has shown that in the aftermath of the 2020 election, Fox News eagerly promoted former President Donald Trump’s false claims it was stolen. The network promoted those claims despite hosts and executives privately admitting they were false.
It is because of that mountain of evidence that some analysts who would normally defend a news network on free speech grounds don’t see this case as posing a dangerous threat to press protections. Instead, they’ve argued this is one of those rare cases that meets the extremely high bar for defamation in the United States.
“This is about as strong as a case you’re going to get on defamation,” one law school professor told The New York Times.
I asked French during our conversation if he was worried that a Dominion victory would pose a threat to the First Amendment. “It doesn’t,” French said. He explained:
The New York Times v. Sullivan standard is going to control this case. New York Times v. Sullivan is an extremely speech-protective standard that was devised by the Supreme Court that says if you’re going to be speaking about a public figure or a company like Dominion that has a public presence, it is very hard to prove defamation. You have to prove what’s called actual malice.
French noted that defamation has “never been protected speech,” but that the actual malice standard was adopted as an “extra layer of protection” for speech about public figures.
Given the judge’s prior rulings in this case, the trial will not center on whether the claims aired about Dominion were true (the judge already ruled they were false.) It will come down to the actual malice standard: Dominion has to prove Fox News either intentionally lied or displayed a reckless disregard for the truth when it promoted false claims about the company.
“That’s a very speech-protective standard,” French said. “To win Dominion has to meet that test. So my view is that test is very protective, but it’s also in line with our historic position that we do not protect defamation. So I don’t view it as a threat to free speech. I think that if Dominion cannot make its case to a jury, then it can’t make its case. But if it can, then this is a proper amount of accountability.”
In the absence of a last-minute — or even mid-trial — settlement, the fate of this case will lie in the hands of 12 jurors. Regardless of the outcome and its consequences, what has been revealed so far in this case is that Fox’s handling of the 2020 election is a tremendous scandal. On air talent and network leadership sold a stolen election fantasy to Fox’s audience despite knowing it to be untrue in a frantic effort to protect the bottom line.
As French noted, the evidence revealed so far in this suit shows it isn’t any old defamation case: “This is wild stuff! Where they know they’re putting lies on air. They know it.”
This is an opinion piece. The views expressed in this article are those of just the author.
