This commentary is by Narain Batra of Hartford, a media and First Amendment scholar, and author of “The First Freedoms and America’s Culture of Innovation” and “India in a New Key.”
Nobody has a monopoly on truth; therefore, the First Amendment, in essence, says: Speak up fearlessly so that truth might emerge.
In the marketplace of ideas, when robust and uninhibited discussion about public issues leads to inaccurate information or misinformation, the remedy is not censorship or suppression of the information, however outrageous it may be.
Relentless fight against falsehood is the only way, but it requires people of tremendous moral courage, time and patience, and financial resources to dig out the truth and punish the liar.
The Jan. 6 Committee, the bipartisan select committee of the U.S. House of Representatives, is an exemplar of the collective moral courage for the truth to be established, regardless of the consequences, so that American democracy renews itself as it did after the Watergate, which brought down Richard Nixon.
Donald Trump and Liz Cheney are both the offspring of American democracy and historically it has always been a struggle between such people. In closed authoritarian societies, if a lie is repeated 10 times, as the Nazi propagandist Joseph Goebbels asserted, it will become believable — but not for long, as the postwar Germans discovered. And as My Pillow guy Mike Lindell, Trump’s personal lawyer Rudy Giuliani and others too would discover soon.
At the core of American democracy is a dynamic system of fundamental rights that empowers the individual, limits the government, and decentralizes and distributes power. But no fundamental right is absolute because your right to free speech might interfere with someone’s right to a fair trial, invade someone’s privacy and cause emotional harm, or ruin someone’s business reputation. If the First Amendment’s broad tolerance for all kinds and shades of speech leads to defamation, damage to one’s reputation, threat to security or emotional hurt, the price can be very high.
The conspiracy theorist and Infowars host Alex Jones found out that the First Amendment does not protect the reckless disregard of truth, deliberately telling lies, or what the Supreme Court called “actual malice.” The jury asked Alex Jones to pay $965 million in damages to the Sandy Hook Elementary School families for telling lies about the shooting that killed 20 first-graders and six educators on Dec. 14, 2012. It took about a decade for justice to be done, but that’s how the justice system in a democracy works. Libel is a strong antidote against reckless liars taking shelter under the First Amendment umbrella.
Alex Jones is a small fry compared to a most politically powerful global media mogul, Rupert Murdoch, whose Fox News not only allowed the spread of the Big Lie about the 2020 presidential election; but also accused Dominion Voting Systems of using a faulty algorithm that made it possible for voter fraud to occur and steal the election from Donald Trump.
Moreover, Fox News hosts said without any evidence that the Dominion Systems, the Toronto election technology company, was a cover for the Venezuelan communist government of late Hugo Chavez.
In an interview with Anderson Cooper on CBS “60 Minutes,” Dominion Systems’ John Poulos said the Fox News’ deliberate and reckless falsehood has not only damaged the company’s reputation, but also: “People have been put into danger. Their families have been put into danger. Their lives have been upended and all because of lies. It was a very clear calculation that they knew they were lies. And they were repeating them and endorsing them.”
Dominion’s $1.6 billion defamation lawsuit against Fox News and its parent company, Fox Corp., is rather complicated because it raises the question of the freedom of the press under the First Amendment, and the media’s right to report news, especially about a prominent politician’s allegations about electoral machine-enabled voter fraud.
Then-President Donald Trump’s tweets were always a source of media news regardless of their authenticity. Neither Fox News nor any other media company could have ignored it when, for example, Trump tweeted, “We have a company that’s very suspect. Its name is Dominion. With the turn of a dial or the change of a chip, you could press a button for Trump and the vote goes to Biden. What kind of a system is this?”
Good journalism is based on: Trust but verify, and then report. Fox News should have known.
Dominion’s case argues that Fox News hosts knew the allegations against the company were baseless; nonetheless, they recklessly and knowingly went on repeating them and also allowed their invited guest speakers to do so. Moreover, according to the case, they wouldn’t have done it without the knowledge of Fox Co. chairman Rupert Murdoch and CEO Lachlan Murdoch. Their irresponsible actions not only caused tremendous harm to the company’s reputation, the suit alleges, but they also jeopardized the safety of their employees.
When the case goes to trial, the crucial question before the jury will be: Did Fox Corp.’s top executives know that the voter fraud allegations against the Dominion Voting Systems Corp. were false, but nevertheless allowed Fox News hosts and guests to keep broadcasting the lie?
More importantly, what role did major news media organizations such as Fox Corp. play in the 2020 presidential elections in diminishing voters’ trust in the electoral system and, consequently, people’s faith in democracy?