When Fox News wants to explain the law in ways that will mislead and misinform its viewers, they turn to “lawyers” like Rudolph Giuliani and Sidney Powell. But when the network needs to defend itself in court from billion-dollar lawsuits, they turn to super lawyers like Paul Clement.
Clement is one of the most respected litigators in the country, a fixture at the Supreme Court advocating for conservative causes. The fact that Fox News (along with its parent company, Fox Corp.) hired him to defend the company against the $2.7 billion defamation lawsuit brought by voting machine maker Smartmatic is an indication of just how serious and potentially devastating Smartmatic’s charges are against the network. Clement is not the guy you hire when you are hit with frivolous litigation. Clement is the guy you hire when you have to win.
Smartmatic’s case against Fox is very strong. The company claims that on-air hosts (including Lou Dobbs, Maria Bartiromo, and Jeanine Pirro) as well as guests (think Giuliani and Powell) made numerous false statements about the company. Powell, for instance, alleged that former Venezuelan president and currently dead person Hugo Chávez helped develop Smartmatic’s technology. He did not. She and others also claimed, without evidence, that Smartmatic, along with Dominion Voting Systems, engaged in some kind of conspiracy to transfer votes in the 2020 presidential election from Donald Trump to Joe Biden. No evidence has ever been produced
What makes Smartmatic’s case particularly strong is that the technology was not widely used during the 2020 election. Only one county, Los Angeles county, used Smartmatic, and that county was not actually disputed by Trump or the Republican party. So even if a person somehow believed that there was massive election fraud, led by the makers of voting machines, lumping Smartmatic in with that conspiracy was incredibly irresponsible. (Dominion has filed a separate lawsuit against Giuliani, Powell, and Newsmax, but not Fox.) It’s like accusing Dominos and Pizza Hut of putting loneliness in your pizza when there’s no Pizza Hut operating within 100 miles of your house.
In response to all of this, Fox’s lawyers claim they were just sharing “both sides.” Clement and crew argue that Trump’s allegations of election fraud were clearly newsworthy and therefore allowing Trump’s surrogates to come on the air and talk about it was squarely within Fox’s First Amendment right to report the news.
That’s not a terrible argument. In fact, it’s one that every news organization in this country relies on. Clement distills the point in his brief: “The press can interview a newsworthy individual making controversial statements without endorsing everything the interviewee conveys. And the press may cover both sides of a heated controversy without fearing that it will be sued by the party who eventually prevails because it also gave the losing party a forum.” He’s saying that news organizations have a protected right to cover the news.
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But Clement is playing a word game. Fox did not merely invite people to come on and share “controversial” statements—Fox invited them to come on and misinform. It was not covering both sides of a “heated controversy”; its programs were involved in actively spreading false information about a company that had nothing, factually, to do with the controversy. In defending Fox, Clement points to a few times when its hosts followed up an outrageous claim by saying “Smartmatic denies” whatever was just said, but such pro-forma denials are not always sufficient in a defamation case. I couldn’t bring on a guest to say without any evidence, “Paul Clement smokes more crack than Pooky from New Jack City,” append a quick “Clement denies these allegations,” and then go back to the interview. (To be clear: Clement does not smoke crack. This is a patently absurd claim, which falls under the “clear parody” exception to libel law, and I’m literally betting Clement knows that.)
The First Amendment does not protect knowingly false, objectively risible speech offered as truth. It does not protect people who know their claims are false when they slander or defame other people or organizations. Clement knows this, and that’s why his argument in defense of Fox essentially throws Giuliani and Powell under the bus. He doesn’t make the case that Trump surrogates had a constitutional right to go on TV and spread defamatory lies about another company, because he knows they have no such right (in fact, his brief states that “a defamation case may lie against them”). Instead, he focuses on Fox’s right to “report” on the lies being spread by others by having the liars speak to its audience.
What Clement is attacking is the idea of republication liability. That’s the concept in law that holds a publication responsible for slanderous lies it doesn’t create but nonetheless disseminates. Under ordinary law, “but Sidney said it” is not a defense for defamation. Every person working in journalism understands, or should understand, that you can’t simply repeat damaging, unverified statements as “facts” because you heard it somewhere else first.
Even Republicans can understand that republication liability is a thing. I know this because that’s precisely what so many of them supported when Nick Sandmann sued The Washington Post, CNN, and other news outlets back in 2019. Sandmann, for those who don’t recall every scandal of the Trump era, is the Covington High School kid whose encounter with Omaha tribal leader Nathan Phillips at the Lincoln Memorial went viral. Sandmann was able to force the Post and CNN into a settlement, in part because many of the stories about what happened during the standoff between him and Phillips on the Mall were based on partial and unverified reports that came from other people, not facts reported directly by the news organizations.
If we want to understand what a world without republication liability looks like, we don’t have to look far. We just have to pull out our phones and open Twitter.
Social media companies like Twitter are protected from the kind of lawsuit Smartmatic launched against Fox by Section 230 of the Communications Decency Act. Section 230 essentially removes republication liability from websites that simply publish user-generated content. It is the reason the comments section on this article, or the tweets that populate your Twitter feed, cannot give rise to a defamation suit against The Nation or Twitter. If republication liability wasn’t a thing, Section 230 wouldn’t be needed.
Now, however, if the Fox defense is successful, legacy news organizations will have the same “protections” from liability as currently enjoyed by the social media companies. (The irony that Fox News hosts, guests, and a number of GOP politicians are constantly trying to kill Section 230 is not lost on me. Liability for thee but not for me.)
That’s why Clement’s legal argument is so dangerous. If he’s successful in this argument (and again, bringing on one of the most respected Supreme Court litigators is a sign that Fox intends to pursue this line of defense all the way up to the highest court, which is stacked with justices appointed by Republican presidents), it would fundamentally change the nature of journalism in this country. It would make cable news networks and legacy media publications more like the kind of disinformation madhouses that are today’s social media platforms. It would encourage other media networks to behave more like Fox, and Fox to behave even more like Trump’s old Twitter feed. It would take a country already struggling to distinguish fact from fiction and swamp it in even more lies.
Some people probably think that the media can’t get worse than it is now. But it most certainly can. And this legal defense is how.
Smartmatic v. Fox is shaping up to be one of the most consequential media lawsuits in recent US history. If Smartmatic wins, it could essentially force the least responsible cable news network to stop giving a microphone to people who willfully lie to its aging white audience. If Fox wins, the disinformation and outright lies that are so prevalent on social media will spread even further throughout the media ecosystem.
This could be an inflection point. But with the Supreme Court stacked 6-3 with conservatives, it could very well be the point where the lies overtake us all.
