Defamation And The Neutral-Reporting Doctrine: A Look At Fox News’s Tactic To Outsmart Smartmatic
On February 4th, the election technology company Smartmatic USA filed a lawsuit in New York state court, alleging that Fox News, three on-air Fox personalities, and former president Trump’s erstwhile lawyers Rudy Giuliani and Sidney Powell defamed it by broadcasting false statements that Smartmatic was part of a conspiracy to rig the presidential election. Just four days later, Fox responded to the complaint by filing a motion to dismiss, arguing, among other things, that it is immune from liability based on the “neutral-reporting doctrine.” What is the doctrine, will it end the suit, and is it even available to Fox?
Defamation suits against the press have been notoriously hard to win since the U.S. Supreme Court’s landmark ruling in N.Y. Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964), which, with its progeny, required plaintiffs who are public figures to show not only that a piece of journalism was inaccurate and hurt their reputation, but that its publisher acted with “actual malice,” meaning with either actual knowledge of the falsity, or with a reckless disregard for the truth. A “reckless disregard for the truth,” in turn, has been interpreted as meaning that the defendant “entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1325 (1968). This is a demanding standard to meet. In 2018, the New York Times reported that it had not lost a defamation case in at least 50 years.
Nevertheless, Sullivan did not entirely extinguish defamation cases against the press. As a result, some jurisprudential corners of the country saw the emergence of the neutral-reporting doctrine cited by Fox. The doctrine, sometimes referred to in polite company as the “neutral reportage” doctrine, holds that a publisher cannot be liable for disseminating defamatory statements by others, even if it has serious doubts about the truth of those statements. As the Second Circuit explained in Edwards v. National Audubon Soc., 556 F.2d 113 (2d Cir. N.Y. May 25, 1977), cited by Fox in its motion to dismiss, the neutral-reporting doctrine recognizes a “fundamental principle” of the First Amendment:
“[W]hen a responsible, prominent organization . . . makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter’s private views regarding their validity. What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth . . . . The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.”
That’s strong stuff. But is Edwards enough to shield Fox from liability? For one thing, would Smartmatic find any traction arguing that Giuliani and Powell, both of whom have been widely attacked for pushing their election-fraud theories, are not “responsible” enough to trigger the protections of the doctrine? What about an argument that Fox News did not report Giuliani and Powell’s claims in a “disinterested” manner? The Edwards court touched on this last issue just a paragraph after clamoring atop the free speech barricades, when it laid out some important limitations to the neutral-reporting doctrine: “It is equally clear, however, that a publisher who in fact espouses or concurs in the charges made by others, or who deliberately distorts these statements to launch a personal attack of his own on a public figure, cannot rely on a privilege of neutral reportage.” Not surprisingly, Fox left that part of Edwards out of its brief. Smartmatic’s complaint alleges that Fox News personalities, including Lou Dobbs and Jeanine Pirro, endorsed false statements made by Giuliani and Powell. If the court agrees with Smartmatic, Fox’s neutral-reporting argument could end up neutered.
Another potential nail in the neutral-reporting coffin for Fox is the question of the doctrine’s very existence in New York courts. While the doctrine is undoubtedly alive and well in New York’s federal court system, it appears to be dead as a matter of state law. Fox’s brief cites De Luca v. N.Y. News, Inc., 109 Misc. 2d 341, 438 N.Y.S.2d 199 (Sup. Ct. 1981), which purported to import the Second Circuit’s reasoning from Edwards into New York law. But Fox’s brief ignores Hogan v. Herald Co., 58 N.Y.2d 630, 458 N.Y.S.2d 538, 444 N.E.2d 1002 (1982), a New York Court of Appeals opinion issued a year after De Luca, which affirmed a decision of the Fourth Department rejecting the doctrine (Hogan v. Herald Co., 84 A.D.2d 470, 446 N.Y.S.2d 836 (App. Div. 4th Dept. 1982)). The Court of Appeals reiterated its rejection of the neutral-reporting doctrine a few years later in Weiner v. Doubleday & Co., 74 N.Y.2d 586, 550 N.Y.S.2d 251, 549 N.E.2d 453 (1989), when it refused to recognize “a privilege to repeat the statements of third parties so long as no endorsement was given.” Fox indirectly addressed the likely unavailability of the doctrine in New York by floating the idea that Florida law might apply instead, as it is the location of Smartmatic’s domicile.
Whether or not Fox is able to avail itself of the neutral-reporting doctrine in this case, the challenge for Smartmatic will remain largely the same. If Fox is able to muster the protection of the doctrine, Smartmatic may be able to save its claims by showing either that Giuliani and Powell were not “responsible” enough to trigger the doctrine, or that Fox was not “disinterested” enough to merit protection. If Fox is unable to find sanctuary in the snug harbor of neutral reporting, Smartmatic will have to show actual malice on the part of Fox and the individual defendants. In either case, assuming its claims survive Fox’s motion to dismiss, Smartmatic will be faced with the daunting task of showing that Fox disseminated falsehoods about Smartmatic with a culpable mind.