Summary: Despite the significance of Fox News’ payout to Dominion, serious threats to U.S. democracy, spearheaded by Republicans, continue to gain momentum – Editors
Defamation suits are historically difficult for the plaintiff to win in the United States, particularly when the defendant is a news or media organization. This is largely due to the First Amendments protections of press and speech. In order for a media organization to be found at fault, they must demonstrate “actual malice”. This can be proven if Fox and its pundits knew what they were broadcasting was false and/or if a blatant disregard for the truth can be demonstrated. Fox’s decision to settle is an implicit admission they used their platform to spread misinformation and undermine democracy.
The plaintiff, Dominion Voter Systems, was accused by the network of fraudulence as part of their broader election fraud narrative. Arguably, this narrative was promoted to the maintain viewership. Internal messages between Fox correspondents indicate well known commentators like Sean Hannity, Laura Ingram, and Tucker Carlson all expressed reservations and even disbelief to their colleagues. Carlson texted Ingram the following while on the topic: “Our viewers are good people and they believe it.”
This was central to Dominion’s case against Fox. They argue that after ratings began to fall post-election and, in order to appeal to their audience, hosts such as the aforementioned began touting conspiracy theories found on social media and put-forward on other far-right media outlets, such as Newsmax. Fox argued they were merely covering one side of an argument, that they were merely fulfilling their duty as a media organization. Additional texts from Carlson and others indicate they were well aware that contradicting Trump’s claims of election fraud were hurting the networks brand.
Returning to what is necessary to win a defamation suit against a media organization, it must be proven that Fox News acted with “actual malice” or “reckless disregard” – that they were aware the claims were false or simply didn’t care. The text messages, though very few of the many uncovered by the New York Times, demonstrate the central concern at Fox News was to maintain viewership – whatever the cost.
This illuminates a particularly horrifying reality of the state of the “free press” in not only this country but all of the capitalist world. Media and news corporations are businesses, they are for-profit. While this does not necessarily mean such corporations will cover up the truth, the Fox and Dominion suit illustrates that profit can take priority over the truth relatively easily. Fortunately, the truth won… this time. Democracy won… this time. Dominion sued for $1.6 billion. Fox News ended up settling with them for $787.5 million.
Harper v. Hall and Moore v. Harper
Fox’s payout to Dominion is an implicit win for democracy; further, it reveals such claims were completely unfounded and spread with profit in mind rather than truth or the integrity of democracy. Unfortunately, voters across the country still hold these beliefs and elected officials continue to use such falsehoods to win elections and amass power for an increasingly fascistic party.
Gerrymandering is a well-established tradition afforded to the political elites of the United States that, contradictorily, allows the elected to choose their voters. Article I Section 4 of the U.S. Constitution proscribes broad powers to State Legislatures to govern elections within their state; however, “but the [Federal] Congress may at any time by Law make or alter such Regulations…” The federal government has failed to pass any legislation that prohibits gerrymandering, though some states have created independent election commissions to draw their district lines. The people of Arizona did this by ballot initiative in 2000.
Today, what is particularly harrowing in regard to gerrymandering revolves around a case twice settled in the North Carolina Supreme Court and a related case also been heard by the U.S. Supreme Court, though their decision is still pending. Known as Harper v. Hall in the North Carolina courts and Moore v. Harper by the U.S. Supreme Court, these cases pertain to the validity of a highly partisan gerrymandered elections map passed by the North Carolina state legislature and the power of all state legislatures regarding laws and procedures regarding elections.
This map in question would have virtually guaranteed Republicans ten of the state’s fourteen seats in Congress. The Brennan Center reports the map was a statistical outlier favoring Republicans more than 99.99% of other maps. In opposition, people within the state took the map to the North Carolina Supreme Court to be thrown out in February 2022, which it was. This is Harper v. Hall.
After the North Carolina Supreme Court rejected the map, the state legislature made an appeal to the U.S. Supreme Court reinstate their partisan-gerrymandered map in place for the 2022 election – which was denied. However, the state filed another case with the Supreme Court, Moore v. Harper, arguing the Court should reinstate their map after the election. The U.S. Supreme Court heard oral arguments in December 2022.
A reason Harper v. Hall was heard by the North Carolina Supreme Court and not the U.S. Supreme Court is due to a past ruling (Rucho v. Common Cause) by the U.S. Supreme Court wherein the Court decided it cannot weigh in on issues of partisan gerrymandering. While racial gerrymandering is within their jurisdiction to deliver a ruling, there was no effective way for the Court to issue a decision pertaining to partisanship or politics as Article I Section 4 of the Constitution designates these powers to the states and, ultimately, the federal legislatures – the political branches. The point at issue in Moore is not the map itself, but whether state courts can throw out state legislature’s maps on based on its constitutional mandate to uphold fair elections.
In April of 2023, at the request of the Republican-controlled state legislature, the North Carolina Supreme Court overturned its decision in Harper v. Hall. Judges on the state supreme court are elected in North Carolina by the voters, and Republicans won the majority of the seats in the 2022 election. This new court’s decision to overrule its prior ruling now calls into issue questions of jurisdiction for the U.S. Supreme Court, meaning it may not even issue a decision on the arguments it heard in December of last year.
The situation has become incredibly chaotic and uncertain. The Court might issue a decision this summer, if at all. That being said, the current precedent would provide grounds for state legislatures across the country to create partisan maps like the one created by the North Carolina legislature and diminish the power of the state courts. If the Court does nothing, maps which virtually pre-determine who will be sent to D.C. may become commonplace.
The Court should not be seen as a source of hope for proponents of liberal democracy, though. This is the same Court that broke with fifty years of precedent in Dobbs v. Jackson Women’s Health Organization, virtually overturning Roe v. Wade. This Court may well further empower the fascist tendency within Republican-controlled state legislatures to undermine voter protections and ensure right-wing control of the federal government. It’s worth noting, too, that in Rucho v. Common Cause the Justices ruled they could not weigh in on issues relating to partisan gerrymandering regardless of the fact it was very clear the map in question favored one party over the other. Why should this Court rule any differently, any better, any more democratically?
The theoretical basis used in Moore to argue the state courts cannot throw out maps created by the legislature is known as the Independent State Legislature Theory (ISLT). It argues state legislatures possess total control of elections under Article I Section 4 of the Constitution. The same clause used to argue for such control undermines its absolutism, as the U.S. Congress can alter or preempt these laws at any time. Further, state courts have the ability to weigh-in on issues of racial discrimination pertaining to gerrymandering and elections, amongst other things.
The logic behind the ISLT is shaky at best and has not been favored by the Supreme Court in the past. As mentioned above, in 2000 Arizona voters passed a ballot initiative that took the power to draw Congressional district lines from the state legislature and authorized an independent commission to do so. In 2015, the Supreme Court heard arguments for Arizona State Legislature v. Arizona Independent Redistricting Commission and ruled in favor of the independent commission.
This Court interpreted “Legislature” broadly in Article I Section 4 Clause 1, arguing it referred to “the power that makes laws.” The Court looked at dictionaries from the time of the Framers and pointed to the variation in the meaning of the word, thus interpreting the creation of the independent commission by the people via ballot to be consistent the lawmaking function of such a power described in the Elections Clause of the Constitution.
The Dominion payout is somewhat of a quiet victory, and it will truly be meaningless if state legislatures attain un-checked authority to regulate, design, and draw-up their elections – to the extent these politicians choose their voters. Republicans across the country have already expressed a keen interest in predetermining elections, and Democrats themselves are not innocent; however, the current fascistic nature of the Republican Party and their past claims undermining democratic institutions make their efforts to undermine the will of the people and consolidate their power all the more alarming today.
Fox disbelief of election fraud claims: https://www.nytimes.com/2023/02/16/business/media/fox-dominion-lawsuit.html
Dominion Settlement: https://www.nytimes.com/2023/04/19/business/fox-news-dominion-settlement.html
Elections Clause of Constitution (plus background): https://constitution.congress.gov/browse/article-1/section-4/clause-1/#:~:text=Clause%201%20Elections%20Clause,the%20Places%20of%20chusing%20Senators.
Moore v. Harper: https://www.lwv.org/blog/whats-going-moore-v-harper
Brennan Center (Moore v. Hall and connection to ISLT, Harper v. Hall): https://www.brennancenter.org/our-work/research-reports/moore-v-harper-explained
N.C. overruling itself on Harper v. Hall: https://www.npr.org/2023/04/28/1164942998/moore-v-harper-north-carolina-supreme-court
(Moore) Petition for writ of certiorari: https://www.democracydocket.com/wp-content/uploads/2021/11/2022-03-17-Moore-Cert.-Petition.pdf