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Trump might prompt a new legal look at libel | Cotterell

Bill Cotterell
Capital Curmudgeon
Bill Cotterell

Wouldn’t it be odd if President Trump, the man who wanted to “open up” the nation’s libel laws and make it easier to sue purveyors of “fake news,” winds up helping to muzzle some major peddlers of mass misinformation?

And they are his friends, “news” sources that have been pimping for his groundless claims of election fraud in some key states.

Right now Fox and two of its upstart competitors for hardcore rightwing viewers, Newsmax and One America News Network, face threats of libel suits for things they broadcast about vote-counting by two companies, Dominion Voting Systems and Smartmatic. Basically, the offending segments alleged that vote-counting systems of the two companies helped President-elect Joe Biden “steal” the election last month.

Except for being utterly untrue, these were good old-fashioned scoops. And as the lawyers pointed out in the stilted language of their demand letters to the networks, the allegations were damaging to the professional reputations of companies that depend on reliability and accuracy in peddling their tech services.

Fox and Newsmax have been scrambling to “clarify” the erroneous information they’d spread with nothing to back it up. One America, as of this writing, hasn’t publicly reacted.

While Smartmatic threatened legal action, Dominion demanded that Sidney Powell, the Texas lawyer who previously represented Trump, publicly retract things she’d said about the company being founded by Venezuelan dictator Hugo Chavez, among other things.

Separately, Dominion’s security chief filed suit in Denver this week against the Trump campaign, Powell, Rudy Giuliani, Newsmax, OANN, and some conservative commentators. He cited threats he said resulted from false reports of deleting or switching ballots.

If the tech companies sue, Fox and the others might argue that Smartmatic and Dominion are “public figures,” and thus subject to a higher standard of malicious intent. Arguing that doing business with public officers makes a company part of the government would be a new twist on a celebrated legal doctrine that has protected the news media for more than a half century.

In 1964, the U.S. Supreme Court unanimously threw out a $500,000 judgment against the New York Times in a suit brought by a police commander in Montgomery, Alabama. The paper had published a full-page ad, signed by some celebrities seeking contributions to Dr. Martin Luther King Jr.’s civil rights activities in the South and there were a few trivial mistakes in the text.

Not only were the errors not defamatory of plaintiff L.B. Sullivan, the court ruled that a public figure must prove a newspaper or broadcaster knew a statement was false, or published it with reckless disregard for truth. If sued, the networks might claim they didn’t say those false, damaging things — they just permitted guests on their programs to say those false, damaging things.

Fox could survive a big judgment but Newsmax and One America News might find a libel loss crippling. Their demise would not be a major blow to the public’s right to know.

But we’re a long way from that.

There’s no telling what the newly Trumpified federal judiciary — especially the Supreme Court — might do with suits against news operations. The media certainly don’t want to revisit the Sullivan doctrine, which gives them such broad protections, but a lot has changed since 1964.

Back then, it was just print, TV and radio. There was no 24/7 cable competition of channels one-upping each other in partisan outrage. And no social media affording punditry opportunities for what Trump himself once envisioned as some 300-pound guy sitting up in bed at 3 a.m. with his computer trawling who-knows-what.

In Sullivan, the Montgomery jury wanted to punish those liberal New Yorkers and their yankee newspaper. The errors were harmless: The ad said King had been arrested seven times in the South, when he’d only been busted four times, and that police “ringed” a college campus, when they’d only assembled nearby.

Those inaccuracies are a far, far cry from saying a tech company has links to foreign governments, or that its systems can be jiggered to alter American history. 

Trump told America in 2016 he’d like to “open up” the libel laws and go after the Washington-New York political press corps. He never followed through, beyond tweeting insults like a 300-pound guy sitting up in bed at 3 a.m. 

But now the debris Trump leaves behind next month may include a new angle on libel law he couldn’t have imagined.

Bill Cotterell is a retired Tallahassee Democrat capitol reporter who writes a twice-weekly column. He can be reached at bcotterell@tallahassee.com.

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