It has been a bad couple of weeks for Fox News.
Legal filings in Dominion Voting Systems’ defamation suit, which is now in pretrial hearings, unveil mounds of evidence that the network misled its audience after the 2020 election. While Fox News hosts and corporate higher-ups were privately disparaging President Trump’s stolen-election conspiracy theories, the news organization appears to have made a calculated choice to avoid telling the truth about his loss—simply to placate viewers who did not want to hear it.
Election denialism is a lie that jeopardizes democracy. As we and other defamation scholars have noted, this lawsuit—which pits Fox’s First Amendment arguments about protecting newsworthy reporting against Dominion’s insistence that the network had a coordinated corporate plan to lie—will test the boundaries of key legal doctrines.
But the “big lie” is not on trial in this case.
Instead, perhaps frustratingly, this case addresses a very specific claim of very specific harm to a very specific entity. Dominion asserts that Fox’s deliberate or reckless falsehoods about its voting systems damaged Dominion’s business reputation. If Dominion wins, the company will recover compensation for that reputational injury and perhaps punitive damages. But that is all.
So, while the headlines about Fox reveal a pervasive and troubling pathology, it is important to recognize that this libel suit, or even several suits of its kind, is nothing close to a full cure for the disease.
Defamation actions succeed only when a lie targets the reputation of a specific defamed party; they’re simply not designed to challenge the toxic but general lies infecting public discourse, such as “the election was stolen.” Defamation law protects individuals from assaults on their reputations; it does not protect the public from assaults on the truth.
Indeed, much of the most distressing and shocking evidence produced in the Dominion case—about Fox’s embrace of election denialism for partisanship and profit; its hypocrisy in saying one thing internally and another thing on its broadcasts; and its mix of disdain for and fear of its own audience—is going to be relevant to this suit only if Dominion’s lawyers can connect the dots between that evidence and the creation of particular false statements about this specific voting machine company.
But there is also potential for backlash, as the outcomes of defamation suits can themselves be weaponized. To wit: If Dominion wins, it will have proven that one piece of election denialism—the part focused on false claims about its voting systems—was false. But if it loses, it could be on any number of fronts wholly unrelated to the question of whether the election was stolen. The Constitution sets an exceptionally high bar, and for good reason. History teaches us that it is staggeringly difficult to gather the precise, required state-of-mind evidence, even in cases of proven falsehood. It is likewise hard to link evidence of knowledge within a corporate hierarchy to specific programming decisions that platformed a lie.
But if Dominion loses this lawsuit, election denialists could misrepresent this as proof that the election was stolen. Even Fox’s briefing in this case, which does not argue that the statements it aired about Dominion were true but rather that they were newsworthy, has already been distorted as more “proof” of the lies. Dominion shows no signs of settling. But if it did, this would also surely be spun into a tale that the lie was the truth.
We are in the midst of a disinformation crisis. And the environment that gave rise to the problems in this suit—a public that has been conditioned to discredit some news outlets and unquestioningly believe others; declining trust in courts and other governmental institutions; an information ecosystem that financially rewards provoking outrage; and politicians who manipulate and dictate the information habits of their bases—will persist, regardless of the outcome.
In other words, defamation law cannot provide an authoritative declaration of all societal truth. It often meets its narrow aim of compensating the defamed party for its reputational injury without serving the broader, more amorphous goal of unringing the bell, let alone correcting a lie circulating in society.
Still, Dominion’s lawsuit has done society a huge service. The depositions conducted, the internal communications gathered, and the harm exposed provide important insights into the causes and effects of election denialism—and of disinformation more generally. Dominion may well prevail on its claims because the evidence of reckless disregard for the truth here is powerful. But defamation law by itself can’t save democracy. Instead, this case and the grave problems it has revealed should spur other, broader conversations about the ways we can and must combat both the supply of disinformation and the seemingly bottomless demand for it.