NPR's A Martinez speaks with Martin Garbus, a New York lawyer who has argued many high profile First Amendment cases, about how the case brought against Fox news could affect the media industry.
A MARTÍNEZ, HOST:
The biggest media trial in decades is set to begin today in Delaware. The case pits conservative media network Fox News against Dominion Voting Systems, a maker of electronic voting machines. Dominion is suing Fox for broadcasting false claims that Dominion's voting machines changed votes cast for then-President Donald Trump over to Joe Biden. Dominion wants 1.6 billion in damages, and there are broader issues in the balance for media companies and the way they're held accountable for what they produce. For more, we're joined by First Amendment attorney Martin Garbus. Martin, what makes this lawsuit so significant for the media industry and the First Amendment?
MARTIN GARBUS: It's an extraordinary examination into what the media does. Times against Sullivan said that the media is responsible if they publish something with actual malice, that if they publish something with reckless disregard of the truth. And this case is the first case since Times against Sullivan, which came down in '64, that really interprets what those words mean - actual malice and recklessness. And in this case, the - Dominion has pulled together 20 statements which were made by Fox people, which they say when that person made the statement, they knew that the claim that Biden or Dominion was involved in election fraud was false.
MARTÍNEZ: And, Martin, that's what the jury is deciding, right? The trial judge already ruled that the statements were false, but the jury is to decide whether Fox deliberately aired them knowing they were false.
GARBUS: Yes.
MARTÍNEZ: OK. So how does this case then compare to past claims against news organizations?
GARBUS: There has never been a case where there's been this much evidence, both of falsity and knowing falsity. And you've never met - seen a case where the actual malice standard is met, as this one is. In other words, when the Fox people put people on, they knew that Sidney Powell was unreliable, that Giuliani was unreliable. And they knew that those people had never checked out, and they knew those people were winging it. So Dominion has a claim to deal with whatever damage they suffered as a result of these actually malicious statements.
MARTÍNEZ: Then would a win for Dominion weaken New York Times v. Sullivan?
GARBUS: I don't think so because I think that there's never been a case as egregious as this. If you saw The New York Times or The Washington Post or even NPR, you'll have one or two people involved, you know, have one or two statements. But here you have all these emails, you have all these admissions, you have all the facts.
MARTÍNEZ: So you're saying that the evidence in this case makes this a special case, so there wouldn't necessarily be a flood of libel lawsuits all over the place if it goes Dominion's way?
GARBUS: Yes. I think there are always going to be lawsuits any time anybody wins anything. But is this going to jeopardize the media? No. In fact, it jeopardizes our democracy if people like Fox are not stopped from doing what was done here.
MARTÍNEZ: But if Fox wins, then, Martin, then is the bar for defamation set too high? I mean, would a win for Fox maybe help efforts to roll back broader protections for journalists?
GARBUS: I don't think so. The facts here are so unique that you cannot say if a New York Times reporter, an NPR reporter makes a mistake, then, as a result of this case, we're going to find actual malice. It's very, very different.
MARTÍNEZ: If Fox wins, how would it be possible for any news organization to ever lose a case like this?
GARBUS: You're exactly correct.
MARTÍNEZ: What...
GARBUS: What you just said - exactly correct.
MARTÍNEZ: What happens then if this lawsuit ends up in a settlement?
GARBUS: I think it should be settled. I don't see why - and I'm astonished it hasn't been settled. I cannot see Fox allowing two months of their people going on the stand admitting they lied and they relied on false facts. It's astonishing to me that this case has not been settled. I think last year, three libel cases were tried to a conclusion over the hundreds that are filed. People recognize that nobody wins if you show all of Fox's laundry here. I'm astonished that they haven't done it.
MARTÍNEZ: Ultimately, then, in the last 30 seconds we have, Martin, how does this case, one way or the other, affect the work of journalists?
GARBUS: I think that in holding Fox liable, it'll stop other people who are so used to lying on the air. So I think it's a great step forward for the democracy. The world is more than just journalists. The democracy is helped by cleaning out the sewage, and that's what this case can do.
MARTÍNEZ: That's First Amendment attorney Martin Garbus. Martin, thanks for your time.
GARBUS: Thank you.
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