There are even more 2020 election defamation suits beyond the Fox-Dominion case

April 19th, 2023

Rudy Giuliani pictured in Portsmouth, N.H., Wednesday, Aug. 1, 2018. (AP Photo/Charles Krupa)

While the newly settled defamation suit by Dominion Voting Systems against Fox News may be the highest-profile case about lies and conspiracy theories spread about the 2020 presidential election, more than a dozen similar cases are also making their way through the legal system.

In one, an Erie, Pa., postmaster was harassed and chased from his home after a conservative media outlet aired false claims that he altered mail-in ballots to favor Democratic candidate Joe Biden. In Georgia, a voter faced violent threats after the filmmakers behind the debunked “2000 Mules” documentary falsely claimed he had illegally deposited multiple ballots into a drop box. Also in Georgia, two election workers were falsely accused of ballot fraud by two right-wing media outlets and former New York City mayor and Trump campaign adviser Rudy Giuliani.

An even larger $2.7 billion lawsuit filed by another voting machine company awaits Fox News in New York. All of these lawsuits aim to hold a range of conservative figures and media outlets, including former President Donald Trump, accountable for damaging election lies.

The 2020 election brought a wave of credible defamation cases

Legal experts say the very steep challenge of proving someone lied about things they knew or should have known were false has made defamation cases quite rare. But the huge surge of false narratives about the 2020 election has brought a wave of credible cases for the courts to weigh.

Together, they could have a lasting impact by building a body of case law to enforce serious consequences for harassing or lying about elections and the people who keep them running smoothly, says RonNell Andersen Jones, a media law professor and former journalist at the University of Utah.

“What we might see is that the collective whole makes a difference in a way that individual suits cannot,” Andersen Jones says. “It’s only in this new era of the apparent deliberate creation of known lies for politics or profit that we get some cases that put us in a place where the evidence body is deep enough and broad enough that these cases have a chance of succeeding.”

Traditionally, it has also been difficult for ordinary individuals to afford the high cost of legal battles against media organizations and high-profile figures.

“There’s sort of a set of individuals who are taking advantage of this dynamic to flood the news and flood the world with deceptions. They’re amplifying and fabricating lies for personal and political gain,” says attorney Sara Chimene-Weiss of Protect Democracy, a nonprofit legal group that has stepped in to represent some of the private individuals targeted by election-lie narratives.

“I think we see this as, in order to have a thriving democracy, we need to be operating on a shared reality and a shared set of facts. And that’s what we’re aiming to do,” says Chimene-Weiss.

In some cases, just the act of filing these suits appears to have brought immediate results. Andersen Jones notes that the TV show of Lou Dobbs, then a Fox Business host who pushed conspiracy theories about voting machines, was canceled immediately after voting-machine maker Smartmatic filed a $2.7 billion defamation suit against Fox.

Other cases have already been settled. Newsmax settled with Eric Coomer, a former Dominion Voting Systems employee, in 2021 over false claims that Coomer had rigged voting machines. This month, Fox News settled a lawsuit brought by a Venezuelan businessman who had been falsely tied by Dobbs and guest Sidney Powell to voter-fraud conspiracy theories.

What defamation suits can and can’t accomplish

Andersen Jones says that while defamation cases like these can play some role in ensuring that public discussions are anchored in truth, they’re limited to addressing election lies aimed at individuals or specific companies. They are just one tool against the larger societal problem of election denialism and mistrust — a “Band-Aid on a bullet wound,” she says.

“The problem is that we have an information ecosystem where it is profitable for some people to sell lies. And defamation law can only do so much about that,” says Lyrissa Lidsky, a professor of constitutional law at the University of Florida Levin College of Law. “Partly, you’ve got to look at the supply side for this information. I think you have to look at the demand side. To what extent are we going out there and consuming false information willingly because it’s more pleasurable to us than true information would be?”

In the Dominion case, Fox has argued that Trump’s claims of a stolen election were newsworthy. The company and other similar media defendants insist the First Amendment protects them.

Along with having to balance the democratic values of free speech and the flow of accurate information, defamation law is also highly complex, Lidsky warns. It’s not designed to deliver the clean declarations of truth that many Americans may be craving. Opaque settlements, such as Dominion’s settlement with Fox, or losses based on legal technicalities can easily be framed in headlines as confirmation that an election lie or other false narrative was actually true, Lidsky says.

One risk is that defamation lawsuits can also be weaponized against people who raise factually grounded criticisms, she says, which is why a careful balance between protecting people’s reputations and the constitutional right to free speech has always been a key concern at the heart of defamation law.

“It’s really pretty easy to bring a defamation action if you’re rich and powerful. Any time you come in for sharp criticism and it’s not necessarily easy to win, but you can inflict a lot of pain on another individual just by suing them,” says Lidsky. “You have to be careful that defamation isn’t used as a tool to suppress free speech and criticism, particularly criticism of government officials.”