Fox News Wins Underscore The Value Of The First Amendment—To Conservatives
Recent courtroom wins by Fox News are a reminder: free-speech principles protect us all.
Supporters of free speech and the First Amendment have reason for concern as Donald Trump returns to the White House. The president-elect is a longtime critic of the media, which he has dubbed an “enemy of the people” that produces “fake news.” He called on Senate Republicans to “kill” a bipartisan bill that would have expanded press protections at the federal level—which they dutifully did. His presumptive pick to lead the FBI, Kash Patel, has previously declared that he plans to “come after the people in the media… who helped Joe Biden rig presidential elections.”
To be sure, the courts, including the U.S. Supreme Court, historically have been very protective of free speech and the First Amendment. But at least two justices, Clarence Thomas and Neil Gorsuch, have suggested that the Court should revisit New York Times v. Sullivan—the landmark 1964 ruling that required public figures to establish “actual malice” in order to prevail in a defamation lawsuit. This demanding standard has protected media outlets from frivolous defamation cases for decades.
Two justices lack the power to overturn a longstanding precedent of the Court, of course. But if Trump gets to fill one or more vacancies during his second term, he could appoint very conservative justices who might be open to overruling a decision that the political right has criticized as excessively protective of the media.
Critics of Sullivan, however, should keep this in mind: the ruling, including its capacious interpretation of the First Amendment, protects conservative speakers as well as liberal ones. For proof, consider a series of recent courtroom wins by Fox News—the right-leaning, pro-Trump media organization whose ranks have been a key provider of talent to the incoming Trump administration.
In July, Chief Judge Colm Connolly (D. Del.) dismissed a defamation lawsuit filed against Fox News by Nina Jankowicz, who briefly served as a director on a now-dissolved Disinformation Governance Board. In a statement about the victory, Fox News said, “This was a politically motivated lawsuit aimed at silencing free speech, and we are pleased with the court’s decision to protect the First Amendment.”
Also in July, Ray Epps, a former Marine who participated in the protests of Jan. 6, 2021, sued Fox News over reports claiming that he was a federal agent planted in the crowd to start an insurrection that would put Trump in a bad light. But in late November, Judge Jennifer Hall (D. Del.) granted Fox’s motion to dismiss.
Around the same time, Judge J. Paul Oetken (S.D.N.Y.) dismissed a defamation lawsuit brought against Fox News host Jessica Tarlov by Anthony Bobulinski, a former associate of Hunter Biden. Judge Oetken even held that Tarlov was entitled to attorney’s fees under New York’s anti-SLAPP law—a statute that penalizes “strategic litigation against public participation,” i.e., lawsuits seeking to impose liability on speakers for exercising their First Amendment rights.
In a statement about Bobulinski, Fox declared itself “pleased with the court’s landmark decision,” which it described as “the first federal court decision to award attorney’s fees under New York’s anti-SLAPP statute.” Speaking more broadly about all three lawsuits, Fox hailed the trio of “back-to-back decisions from federal courts preserving the press freedoms of the First Amendment.”
Of course, First Amendment defenses don’t always prevail—as Fox News knows all too well. Delaware Superior Court Judge Eric Davis rejected the network’s freedom-of-the-press defense in a defamation lawsuit brought by Dominion Voting Systems, which alleged that Fox defamed Dominion in its coverage of the 2020 election. Hamstrung in its ability to rely on the First Amendment at trial, Fox wound up settling the case—for $787.5 million.
And Fox isn’t out of the legal woods when it comes to defamation lawsuits related to its 2020 election coverage. Last week, for example, a New York appeals court heard oral argument in the $2.7 billion defamation lawsuit filed against Fox by another election-technology company, Smartmatic USA—and the judges seemed inclined to let the lawsuit proceed.
Regardless of the outcome of any particular lawsuit against Fox News, the bottom line is this: the First Amendment protects all speakers, from Fox News on the right to Trump’s “enemies of the people” on the left. And anyone seeking to curtail its protections—especially a president who was found liable, to the tune of $83.3 million, in a defamation lawsuit—should think long and hard about what a diminished First Amendment might mean for us all.
One can strongly favor the first amendment while simultaneously disliking Sullivan. The current elevation of media establishments above the rest of the population is atextual and ahistorical.
While Sullivan has protected the media from frivolous suits, it also protects them from serious ones as well. Many private citizens, through no choice or action of their own, get swept into being "Limited Purpose Public Figures" and have vicious lies told about them with no regard given to truth. What makes them a "Limited Purpose Public Figure"? The simple fact that the press reported on them. And then when they go to sue, they get turned away because media organizations functionally have qualified immunity. This heightened standard is nowhere in the Constitution and has no place in a society where the Bill of Rights is supposed to apply to all Americans equally. I would even argue that the 14th Amendment's Equal Protection clause bars it.
If Sullivan had been confined to what it actually was about - government figures rather than the absurdly broad public figures - I could see an argument for it. As it is, it's a net negative for the nation, and ought to be overturned.
Would that mean conservative outlets get sued more? Absolutely. If that means that media organizations might actually have to do their jobs and fact check their pieces, it's more than a worthwhile trade-off.
A much better replacement, in my opinion, would be anti-SLAPP laws. The devil is in the details, of course, but a law that says the plaintiff must make an up front showing of evidence that their lawsuit isn't frivolous would go along way to resolving the problem that Sullivan was trying to solve without making a certain class functionally immune from suit. It's even better for the organizations doing things right because it gives them attorney's fees.
As we learned in the Twitter files one can censor by the suppression of speech as the Biden Administration did via federal agencies.