Defamation law can slow the plague of "fake news"

Unfortunately, that term is misleading. The court’s standard did not require “malice” at all. New York Times v. Sullivan rules that a speaker can be held liable for defamation if (a) she knew that what she was saying was false or (b) she acted with “reckless indifference” to the question of truth or falsity. Even if a speaker sincerely thinks she is telling the truth, she is unprotected if it should have been obvious that she wasn’t — if, for example, all of the reliable evidence suggested she was speaking falsely.

In 1974, the Supreme Court went on to make it clear that if you are not a public figure, you can win a defamation suit if the speaker has merely acted “negligently.” That’s far easier to establish than “reckless indifference.” A journalist might act negligently, in the sense that she really should have known that what she was saying was false, even if she wasn’t exactly reckless.

In light of these principles, both Smartmatic and Dominion would have a good chance of winning. You could debate whether either or both companies should be counted as “public figures.” But even if they do, both of them have strong arguments that they should be entitled to recover damage awards.