There’s an update in the Smartmatic and Dominion voting machine lawsuits against, um, a bunch of people. Here’s a list of who is being sued. And here’s the update, from the same source.

Voting company Smartmatic’s defamation lawsuit against Fox News and several of its anchors can move forward, a judge ruled Tuesday, also reinstating some claims against attorney Rudy Giuliani, as Smartmatic and rival company Dominion Voting Systems pursue a dozen defamation lawsuits over baseless election fraud claims about their voting machines.

This article at NPR will catch you up on a couple of the suits, which are being heard by Delaware Superior Court Judge Eric M. Davis. I found this bit especially interesting.

Like Dominion, Smartmatic was the subject of false claims that its software had switched Trump votes to Joe Biden. Those claims were broadcast on Newsmax, Fox News and elsewhere.

Davis earlier this month denied Newsmax’s request to toss out Smartmatic’s defamation claim. Davis ruled that the facts pleaded by Smartmatic lead him to “reasonably infer” that Newsmax’s airing of stolen-election claims was reckless enough to meet the high legal bar required for defamation.

“Newsmax either knew its statements regarding Smartmatic’s role in the election-fraud narrative were false, or at least it had a high degree of awareness that they were probably false,” the judge stated.

Awhile back I wrote about the “actual malice” and “reckless disregard for the truth” standards from the old New York Times v. Sullivan (1964) case. Sullivan basically protects news outlets from being sued into bankruptcy for reporting negative things about politicians and other people of public interest. Very briefly, even if, say, a newspaper made a mistake and reported something that is false about a public figure, the public figure cannot collect damages unless he can prove the reporting was done with “actual malice” or “reckless disregard for the truth.”

These are both high bars, but they shouldn’t be insurmountable. Fox and other right-wing news outlets that pushed the stories about voting machines “stealing” votes from Donald Trump are arguing that they were just covering both sides. Trump and his people were making the accusations against the voting machine companies, which is a newsworthy thing, and we’re just reporting what they are saying. It’s not our responsibility to fact check them. 

Just to be clear, here’s an example of the kind of thing being shown on Fox News after the 2020 election.

Fox showed Dominion’s disclaimers, but this was not really an equal presentation of “both sides.” And as I wrote in the earlier post, this “both sides” standard has done a huge disservice to the American public for years. “Covering both sides” has meant, for example, pitting a climate scientist and a climate change denier against each other in a studio while a moderator simply sits there and offers no editorial context. There’s been less of that in recent years than there was, say, during the George W. Bush years (remember Crossfire?). But it still happens way too much. And what Jeanine Pirro is doing in that video is not journalism, either. Allowing a partisan hack to present unsubstantiated nonsense without challenging it robustly needs to qualify as “reckless disregard for the truth.”

This suit is complicated, IMO, by the fact that the litigant voting machine companies are not public office holders but businesses, and the defamation on the part of right-wing news must certainly have hurt their ability to do business. Plus many of the claims being made about Dominion and Smartmatic, such as alleged ties to the government of Venezuela, could be debunked via a ten-minute Google search. It’s not that hard.

Anything calling itself “journalism” should be required a certain amount of due diligence to fact check or at least acknowledge that facts are not known. It’s never perfect. News reporting is a messy business, and even the best reporters will get facts wrong sometimes. But I don’t think the Sullivan standards mean that no effort need be made at all.

In other legal news, MSNBC reported last night,

The special counsel investigating Donald Trump’s handling of classified documents is seeking to compel a lawyer for the former president to testify before a grand jury, a source familiar with the matter said.

Prosecutors allege in a sealed filing that they have evidence that some of Trump’s conversations with the attorney were in furtherance of a crime, the source said.

In a sign of an aggressive new legal strategy, first reported by The New York Times, the source said special counsel Jack Smith has asked a judge to allow prosecutors to invoke what’s known as the crime-fraud exception, which would let them sidestep protections afforded to Trump lawyer Evan Corcoran through attorney-client privilege.

I like the furtherance of a crime part. Evan Corcoran, of course, is the lawyer who allegedly told Christina Bobb to sign a statement last June that all of Trump’s White House documents had been turned over to the proper authorities. Steve Benen provides background.

Finally, we get to Mike Pence, who is fighting a Jack Smith subpoena by citing the “speech and debate” clause from the Constitution. Article I, Section 6, Clause 1:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Pence, of course, was neither a Senator nor a Representative. But Pence is so concerned about Separation of Powers that he refused to speak to the January 6 committee because they were legislative and he was executive. Now he’s flipping that around and saying that he was legislative while Jack Smith works for the executive. But given the corruption of our courts, few people are willing to come out and say Pence couldn’t get away with this.

“Journalism’s ‘both sides’ doctrine, a guiding principle for news coverage by American media outlets, died on Tuesday after a prolonged illness.” That’s the first line of an opinion piece by Erik Wemple at WaPo, and it certainly drew me in. I fear the obituary was a tad premature, but we can hope. However, I think there could be bigger issues at play here.

Wemple’s column focuses on the lawsuits filed by voting system companies Dominion and Smartmatic against Fox News. Fox, of course, aired many unsubstantiated claims that the voting machines flipped the 2020 election from Trump to Biden. Part of Fox’s defense is that they felt an obligation to report on “both sides” of a controversy. So the likes of Sidney Powell and Rudy Giuliani were given many, many hours on Fox News to make utterly unsupported claims of vote manipulation in the 2020 elections. That’s just reporting “both sides.”

“Battling a well-drafted complaint such as Dominion’s is typically a see-what-sticks affair. So in a motion filed Tuesday, lawyers for Fox News argue that the network ‘went straight to the newsmakers’ in pursuing its obligation to report on the allegations; that there is no requirement under the First Amendment for news organization to expose the ‘underlying falsity’ of such allegations; that Fox News has ‘complete protection’ to report on government proceedings; that Dominion fails to document ‘actual malice,’ the sky-high evidentiary standard required to prove a public figure committed defamation.”

“Actual malice” is taken from the Supreme Court’s ruling in a landmark 1964 case, New York Times v. Sullivan. When I was a journalism major at U. of Missouri (class of ’73) this case was ground into my head. It was seen as a huge victory for journalism and a protection for news companies from being nibbled to death by litigation.

You can find the basic facts of the case here. In 1964, the New York Times ran an advertisement soliciting donations to pay for a legal defense for Dr. Martin Luther King, Jr. The ad criticized the Montgomery, Alabama, police department, and those criticisms contained some minor inaccuracies, including the number of times King had been arrested and what song protesters had sung. The Montgomery police commissioner, L.B. Sullivan, sued the Times in an Alabama county court, which ruled in favor of the commissioner. Under Alabama law, Sullivan only needed to prove that there were mistakes and that they likely harmed his reputation. The case then went to the Alabama Supreme Court and eventually SCOTUS.

Justice William Brennan wrote the opinion for a unanimous Supreme Court, and in that opinion he said that public officials “may not sue news media for slander or libel unless the injurious statement is made with actual malice or reckless disregard for the truth,” it says here. Public discussion of government officials and issues should be “uninhibited, robust and wide-open,” he said. The actual malice standard may protect falsehoods, but  “erroneous statement is inevitable in free debate, and … it must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive.”

Journalists certainly embraced this ruling, because there is no such thing as error-free news reporting. No matter how careful one is to get facts straight, there will always be sources that give inaccurate information — sometimes deliberately — and other just plain honest mistakes, especially when dealing with breaking news or very complex issues. New York Times v. Sullivan gave news companies some breathing room when reporting on public officials; they couldn’t be sued for inaccurate reporting or ads unless the official could prove actual malice, which requires proving that a statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Again, this applies to statements made about public officials, not to anybody. However, later cases extended the Sullivan rule to apply to other newsworthy public figures.

Actual malice and reckless disregard for the truth are notoriously difficult to prove, and many argue that the Sullivan standard gives news companies way too much leeway in presenting deceptive reporting. It also allows ads for political candidates to just plain lie like rugs. Further, I personally think the actual malice and reckless disregard in much of Fox News programming is palpably obvious. If that can’t be proved in court, then there are no rules at all.

Fox is arguing that “reporting both sides” relieves them of the reckless disregard rule. We’re just inviting these newsmakers on and letting them express their opinions, Fox is arguing. We are under no obligation to fact check what they say. I don’t know if that one’s been tried before, but it shouldn’t be allowed to fly.

Back to Erik Wemple:

“In advancing its ‘both side’ defense, the motion argues that “coverage of the election-fraud allegations was often quite skeptical,” and cites broadcasts from hosts Laura Ingraham and Tucker Carlson (who notably challenged Powell to furnish evidence of her claims), as well as an interview by anchor Eric Shawn with a Dominion representative. Other Fox News personnel — including ‘Fox & Friends’ co-host Steve Doocy — rebutted or expressed doubts about the election-related conspiracy theories. Dominion, for its part, contends that this awareness actually deepens the network’s culpability. “While these handfuls of statements from a handful of people at Fox do not absolve Fox for its onslaught of defamatory statements about Dominion, they do demonstrate that Fox at a mininum [sic] recklessly disregarded, and really knew, the falsity of the lies its most popular on-air talent were repeatedly promoting about Dominion,” reads the company’s complaint.”

Oops. Wemple goes on to explain how media critics for decades have complained that “covering both sides” often means, for example, pitting a climate scientist and a climate change denier against each other in a studio while a moderator simply sits there and offers no editorial context. This may be entertaining — and it’s a lot cheaper than real investigative reporting — but it does the public a huge disservice by giving science and nonsense equal weight.

A lot of both siderism comes from media’s terror of being accused of bias. Way back in 2000, during the Bush v. Gore presidential election campaign, Paul Krugman famously wrote:

“One of the great jokes of American politics is the insistence by conservatives that the media have a liberal bias. The truth is that reporters have failed to call Mr. Bush to account on even the most outrageous misstatements, presumably for fear that they might be accused of partisanship. If a presidential candidate were to declare that the earth is flat, you would be sure to see a news analysis under the headline ”Shape of the Planet: Both Sides Have a Point.”’

Since Trump, at least part of the media is somewhat less constrained from calling out lies as lies. In 2000, it wasn’t yet allowed.

Erik Wemple again,

“Fox News is arguing that the Trump-Powell-Giuliani lies about the election constitute a ‘side.’ ‘There are two sides to every story,’ reads the network’s motion. ‘The press must remain free to cover both sides, or there will be a free press no more.'”

Are there really “two sides to every story”? I guestion that. Sometimes there might be multiple “sides” from the perspective of multiple factions. But sometimes there’s just one side, which is factuality. What really happened? What does the data tell us? The “two sides” argument tosses facts out the window and just measures two opposing perspectives, which could be entirely biased. That’s what journalism is supposed to root out and expose, not perpetrate.

But here’s what’s rich about the current state of the Sullivan case. Recently some conservative judges, including Justice Clarence Thomas, have been making noises about getting rid of the actual malice rule. W. Wat Hopkins writes at Washington Monthly about a D.C. Circuit panel judge who wrote a dissenting opinion calling for an end to the actual malice rule. Why? Because it protects liberals.

“Silberman’s disdain for the actual malice rule was directly tied to its protection of what he dubbed liberal media who, he wrote, ‘manufacture[] scandals involving political conservatives.’ Finding their bias against the Republican Party shocking, he wrote, ‘The ideological homogeneity in the media—or in the channels of information distribution—risks repressing certain ideas from the public consciousness just as surely as if access were restricted by the government.’ He specifically identified as culprits The Washington Post, The New York Times, and the news sections of The Wall Street Journal. (Silberman approves of the Journal’s editorial stance.) He declared that ‘a biased press can distort the marketplace. And when the media has proven its [sic] willingness – if not eagerness – to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.'”

To which I say, okay. Do we want to allow candidates for public office to sue a television news station when it runs their opponents’ political ads making false accusations about them? That would put pretty much all Republican Party campaign ads in 2020 off the air. Yes, it would cancel some Democrats’ ads too, but not all of them, and probably not most of them.

And do we want to shut down the ability of Fox News to put any wackjob in front of a camera to lie about Democrats with no fact checking whatsoever? Maybe it’s time.

Once again, righties, be careful what you wish for.