Fox News would be in trouble without the "actual malice" standard

Take Fox News, for example: In February, election-technology firm Smartmatic sued Fox News for at least $2.7 billion in damages over allegations that network anchors teamed up with Trump lawyers to smear the company as a co-conspirator in a stolen election. When Fox News filed its motion to dismiss the case, guess what argument it advanced? That Smartmatic was a public figure with a high burden of proof in the litigation. “To state a defamation (or disparagement) claim … Smartmatic must allege facts that, if true, would show that Fox published the allegedly defamatory statements with actual malice — that is, with subjective knowledge that they were false or with reckless disregard for their truth,” notes the network’s filing.

And in another high-profile suit dismissed in federal court last year, former Playboy model Karen McDougal alleged that Fox News host Tucker Carlson defamed her with the false allegation that she’d threatened Donald Trump with the disclosure of their relationship in the 2000s. “Plaintiff is an all-purpose public figure,” claimed Fox News in its motion to dismiss. When civil rights activist DeRay Mckesson sued the network over Jeanine Pirro’s contention that he’d “directed the violence” against police at a protest, Fox News responded that he was “indisputably a public figure.”

On top of the cases in which Fox News cited New York Times to defend itself in court, there are far more numerous occasions when this ironclad judicial precedent scared off the targets of Fox News propaganda from filing complaints in the first place. In a non-New York Times world, Hillary Clinton, Barack Obama and George Soros, among others, could have brought cases against the network. But thanks to the New York Times precedent, the evidentiary hurdles and legal costs are just too much.

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