Lawsuits Take the Lead in Fight Against Disinformation
By Michael M. Grynbaum – The New York Times
Defamation cases have
made waves across an uneasy right-wing media landscape, from Fox to Newsmax.
In just a few weeks, lawsuits and legal threats from a pair
of obscure election technology companies have achieved what years of
advertising boycotts, public pressure campaigns and liberal outrage could not:
curbing the flow of misinformation in right-wing media.
Fox Business canceled its highest rated show,
“Lou Dobbs Tonight,” on Friday after its host was sued as part of a $2.7 billion defamation lawsuit. On Tuesday, the
pro-Trump cable channel Newsmax cut off a guest’s rant about rigged voting
machines. Fox News, which seldom bows to critics, has run fact-checking
segments to debunk its own anchors’ false claims about electoral fraud.
This is not the typical playbook for right-wing media, which
prides itself on pugilism and delights in ignoring the liberals who have long
complained about its content. But conservative outlets have rarely faced this
level of direct assault on their economic lifeblood.
Smartmatic, a voter technology firm swept up in conspiracies
spread by former President Donald J. Trump and his allies, filed its defamation
suit against Rupert Murdoch’s Fox empire on Thursday, citing Mr. Dobbs and two
other Fox anchors, Maria Bartiromo and Jeanine Pirro, for harming its business
Dominion Voting Systems, another company that Mr. Trump has
accused of rigging votes, filed defamation suits last month against two
of the former president’s lawyers, Rudolph W. Giuliani and Sidney Powell, on
similar grounds. Both firms have signaled that more lawsuits may be imminent.
Litigation represents a new front in the war against
misinformation, a scourge that has reshaped American politics, deprived
citizens of common facts and paved the way for the deadly Jan. 6 attack on the
Capitol. Fox News, for
instance, paid millions last year to
settle a claim from
the family of a murdered Democratic National Committee staff member falsely
accused by Fox hosts of leaking emails to WikiLeaks.
But the use
of defamation suits has also raised uneasy questions about how to police a news
media that counts on First Amendment protections — even as some conservative
outlets advanced Mr. Trump’s lies and eroded public faith in the democratic
“If you had asked me 15 years, five years ago, whether I
would ever have gotten involved in a defamation case, I would have told you
no,” said Roberta Kaplan, a lawyer who is representing Mr. Trump’s niece, Mary
L. Trump, and Like other prominent liberals in her profession, Ms. Kaplan had
long considered defamation suits a way for the wealthy and powerful to try to
silence their critics. Last year, Mr. Trump’s campaign sued multiple news organizations for
coverage that the president deemed unfavorable or unfair. The technology
billionaire Peter Thiel bankrolled Hulk Hogan’s suit against the gossip blog
Gawker that ultimately bankrupted the business.
“What’s changed,” Ms. Kaplan said, “and we’ve all seen it
happen before our eyes, is the fact that so many people out there, including
people in positions of authority, are just willing to say anything, regardless
of whether it has any relationship to the truth or not.”
Some First Amendment lawyers say that an axiom — the best
antidote to bad speech is more speech — may no longer apply in a media
landscape where misinformation can flood public discourse via countless
channels, from cable news to the Facebook pages of family and friends.
“This shouldn’t be the way to govern speech in our country,”
Ms. Kaplan said. “It’s not an efficient or productive way to promote
truth-telling or quality journalistic standards through litigating in court.
But I think it’s gotten to the point where the problem is so bad right now
there’s virtually no other way to do it.”
Mr. Trump’s rise is an inextricable part of this shift. His
popularity boosted the profits and power of the right-wing commentators and
media outlets that defended him. In November, when Mr. Trump cast doubt on the
outcome of the presidential election despite no credible evidence, it made
commercial and editorial sense for his media allies to follow his lead.
The Newsmax anchor Greg Kelly refused to accept Joseph R.
Biden Jr. as president-elect and was rewarded with a surge in ratings. Fox News was
more cautious — the network declared Mr. Biden the next president on Nov. 7 —
but some Fox stars, including Mr. Dobbs, Ms. Bartiromo and Ms. Pirro, offered
significant airtime to his lawyers, Mr. Giuliani and Ms. Powell, and others who
pushed the outlandish election-fraud narrative.
In one example cited in the 276-page complaint filed by
Smartmatic, Mr. Dobbs’s program broadcast a false claim by Ms. Powell that Hugo
Chávez, the former president of Venezuela, had been involved in creating the
company’s technology and installed software so that votes could be switched
undetected. (Mr. Chávez, who died in 2013, did not have anything to do with
Smartmatic also cited an episode of “Lou Dobbs Tonight” in
which Mr. Giuliani falsely described the election as “stolen” and claimed that
hundreds of thousands of “unlawful ballots” had been found. Mr. Dobbs described
the election as the end to “a four-and-a-half-year-long effort to overthrow the
president of the United States,” and raised the specter of outside
“It has the feeling of a cover-up in certain places, you
know — putting the servers in foreign countries, private companies,” Mr. Dobbs
Fox has promised to fight the litigation. “We are proud of
our 2020 election coverage and will vigorously defend this meritless lawsuit in
court,” the network said in a statement the day before it canceled Mr. Dobbs’s
Executives in conservative media argue that the Smartmatic
lawsuit raises uncomfortable questions about how news organizations should
present public figures: Ms. Powell was a conspiracist, but she was also the
president’s lawyer. Should a media outlet be allowed to broadcast her claims?
“There’s a new standard created out of this that is very
dangerous for all the cable channels,” Christopher Ruddy, the owner of Newsmax
and a Trump confidant, said in an interview on Saturday. “You have to
fact-check everything public figures say, and you could be held libelous for
what they say.” Mr. Ruddy contends that Newsmax presented a fair view of the
claims about election fraud and voting technology companies.
Newsmax personnel, though, were made aware of the potential
damage stemming from claims that appeared on their shows. In an extraordinary
on-air moment on Tuesday, Mike Lindell, the MyPillow founder and a staunch
Trump ally, began attacking Dominion — and was promptly cut off by a Newsmax
anchor, Bob Sellers, who read a formal statement that Newsmax had accepted the
election results “as legal and final.”
Fox executives revealed their own concerns in December,
after Smartmatic sent a letter signaling that litigation was imminent. Fox News
and Fox Business ran an unusually stilted segment in which an election expert,
Edward Perez, debunked conspiracy theories about voter fraud that had recently
been aired on the networks. The segment ran on three programs — those hosted by
Mr. Dobbs, Ms. Bartiromo and Ms. Pirro. (Newsmax, which also received a letter
from Smartmatic, aired its own clarifications.)
This fear of liability has rippled into smaller corners of
the right-wing media sphere. Mr. Giuliani, who hosts a show on the New York
radio station WABC, was caught by surprise on Thursday when his employer aired
a disclaimer during his show that distanced itself and its advertisers from Mr.
“They got to warn you about me?” Mr. Giuliani asked his
listeners, sounding incredulous. “Putting that on without telling me — not the
right thing to do. Not the right thing to do at all.”
Yochai Benkler, a professor at Harvard Law School who
studies disinformation and radicalization in American politics, said that the
president’s lies about the election had pushed pro-Trump outlets beyond the
relatively lax standards applied to on-air commentators.
“The competitive dynamic in the right-wing outrage industry
has forced them all over the rails,” Mr. Benkler said. “This is the first set
of lawsuits that’s actually going to force them to internalize the cost of the
damages they’re inflicting on democracy.”
Mr. Benkler called the Smartmatic suit “a useful corrective”
— “it’s a tap on the brakes” — but he also urged restraint. “We have to be very
cautious in our celebration of these lawsuits, because the history of
defamation is certainly one in which people in power try to slap down critics,”
Martin Garbus, a veteran First Amendment lawyer, said he was
personally repelled by the lies about the election propagated by Mr. Trump and
his allies, but he also called the Smartmatic suit “very complicated.”
“Will lawsuits like this also be used in the future to
attack groups whose politics I might be more sympathetic with?” he asked.
Mr. Garbus, who made his reputation in part by defending the
speech rights of neo-Nazis and other hate groups, said that the growth of
online sources for news and disinformation had made him question whether he
might take on such cases today. He offered an example of a local neo-Nazi
Before social media, “it wouldn’t have made much of an
echo,” Mr. Garbus said. “Now, if they say it, it’s all over the media, and
somebody in Australia could blow up a mosque based on what somebody in New York
“It seems to me you have to reconsider the consequence of
things,” he added.
*Michael M. Grynbaum
is a media correspondent covering the intersection of business, culture and