Dominion’s defamation lawsuit against Fox News offers unprecedented access to internal discussions at the network regarding its coverage of false narratives disseminated by Donald Trump and his enablers regarding the integrity of the 2020 election that formed part of a broader conspiracy to overturn the results of the election, culminating in the attack on the US Capitol on January 6, 2021.
Much of the media coverage of the lawsuit focuses on whether Fox’s conduct satisfies the US Supreme Court’s high bar for establishing defamation of public figures. While this is an important facet of the case, the public disclosure of the network’s internal communications highlights a broader free speech issue also deserving of attention. This is the extent to which Fox’s close and troubling relationship with the Republican Party – particularly Trump – undermines foundational First Amendment principles regarding the importance of the press to the effective functioning of American democracy.
The Press as a ‘Powerful Antidote’ to Government Abuses
The importance of the press in the American constitutional framework is rooted in the text of the First Amendment, which states in relevant part that ‘Congress shall make no law…abridging the freedom of speech, or of the press’. That the First Amendment speaks separately of freedom of speech and freedom of the press is an acknowledgment of the critical role played by the press in American society. Indeed, the Supreme Court affords protections to the press so that it may fulfil its ‘essential role’ in American democracy as a ‘great interpreter between the government and the people’. In seeking out the news, the press acts as an agent of the public, serving as the means by which the public receives the free flow of information and ideas indispensable to intelligent self-government.
The press affects the societal purpose of the First Amendment by serving as a ‘powerful antidote’ to any abuses of power by governmental officials and the related purpose of keeping officials elected by the people responsible to all the people whom they were selected to serve. The Court emphasises that ‘informed public opinion is the most potent of all restraints upon misgovernment’. For this reason, the Court holds that ‘the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern’.
The Ongoing Campaign to Misinform the American Public Regarding the Integrity of the 2020 Election and the January 6 Attack
While there is debate among legal experts regarding whether the internal communications between Fox News employees disclosed in the Dominion case are sufficient to establish the ‘actual malice’ standard in NY Times v Sullivan, this evidence provides a damning picture of the extent to which the network is unconcerned with performing its First Amendment functions as part of ‘the press.’ Instead, Fox’s paramount concern appears to be providing its audience with the information it wants to hear for the purpose of protecting ratings and profits, even when that information is demonstrably false and misinforms the public regarding the integrity of democratic institutions and the misdeeds of Republican leaders. The Pew Research Center’s Election News Pathways project, which focuses on what Americans hear, perceive and know about the 2020 presidential election and how these attitudes relate to how and where they get news, reveals that 71 percent of those who cited Fox News as their main source of political news gave Trump a very warm rating on a ‘feeling thermometer’. Among all U.S. adults, just a quarter gave Trump a very warm rating.
Because the network views its relationship to Republicans – primarily Trump in recent years – as the key to its success, its primary concerns seem to be keeping its viewers happy and stopping them from turning to other right-wing media outlets, such as Newsmax, for the news they want to hear. By way of example, in a text exchange between Fox producers regarding post-election coverage, one stated ‘[w]e can’t make people think we’ve turned against Trump’. In response to a Fox employee correctly fact-checking a tweet from Trump regarding Dominion, Tucker Carlson told Sean Hannity ‘[p]lease get her fired…It needs to stop immediately…It’s measurably hurting the company. The stock price is down.”
A Harvard study released just prior to the November 2020 election offers further insights into the relationship between Fox News and Donald Trump and its damaging impact on American democracy. It found that in the months preceding the election, the Republican National Committee and Trump re-election campaign staff were repeatedly and consistently on message at the same moments as then-President Trump’s tweets, which suggested ‘an institutionalized rather than individual disinformation campaign’ regarding mail-in voter fraud. This institutionalized disinformation campaign was supported by ‘the right-wing media, primarily Fox News and talk radio functioning as a party press’ that reinforced the message, provided Trump a platform, and marginalised Republican leaders and conservative media personalities who correctly stated that there was no evidence of widespread voter fraud associated with mail-in voting. The study further found that the primary channels of communication for party propaganda involving the false narrative concerning voter fraud came from Fox News. This propaganda was integrated into an institutional and political strategy of litigation and administrative actions designed to prevent or suppress mail-in voting and to limit access to voting during the 2020 election.
One of the most significant conclusions from the Harvard study is that, contrary to most contemporary analyses of disinformation efforts in the American information ecosystem, the disinformation campaign involving mail-in voter fraud, which manipulated the views of American voters, did not originate in social media or via Russia or some other foreign adversary. Rather, it was led by then President Trump and fomented by prominent members of the Republican Party and Fox News, with social media playing a secondary and supportive role. These findings are consistent with a separate study by the same researchers from 2015 – 2018, which found that Fox News and Trump’s campaign were, collectively, far more influential in spreading false beliefs than Russian trolls or Facebook ‘clickbait artists’.
It is important to emphasize that the disinformation campaign regarding the 2020 election and January 6 is ongoing. Earlier this month, House Speaker Kevin McCarthy, a Republican, gave Fox News’ host Tucker Carlson exclusive access to forty-four thousand hours of security footage from the January 6 attack. In so doing, McCarthy ignored the concerns of federal prosecutors and Capitol police that the release of certain footage may reveal information, such as camera angles and escape routes, that could weaken security and leave the Capitol vulnerable to future attacks. Add to these concerns that Carlson routinely promotes conspiracy theories regarding the election and the attack on his show alleging, among other things, that the ‘the outcome of our presidential election was seized from the hands of voters’, that ‘many Americans will never again accept the results of a presidential election’, and that January 6 was a ‘false flag’ operation to discredit Trump supporters organised by leftist antifa groups and the FBI.
Unsurprisingly, Carlson used the footage provided by McCarthy to produce segments awash with disinformation, which portrayed the attack as a peaceful gathering, ‘neither an insurrection nor deadly’, and claiming that in ‘free countries, governments do not lie to their people about protests as a pretext to gain more power for themselves. They don’t selectively edit videos for propaganda services and then lie about them in fake hearings and show trials. But that’s exactly what happened’. When questioned about the segment, McCarthy said he didn’t watch it and claimed he wanted to give the American people ‘transparency’. While some Republicans, including Mitch McConnell, are publicly criticizing Carlson’s portrayal of the attack, it is unlikely that such criticisms will reach Fox’s viewers, who continue to be fed a steady diet of disinformation by the network.
Fox News’ Relationship with the Republican Party is Poisoning American Democracy
It is imperative to appreciate the damage to American democracy resulting from the relationship between Fox News and the Republican Party. As far back as 2012, a study found that Fox News viewers were less informed even than those who watched no news at all. Yet, Fox News is regularly the most watched cable news network in the United States. Pew’s ‘American New Pathways 2020 Project’ revealed that 43 percent of Americans and 65 percent of Republicans say they trust Fox News for political and election news, and 39 percent of Americans reported getting their political news from Fox News in the prior week. Polling conducted in 2021 by the Public Religion Research Institute found that Republicans who trust Fox News overwhelmingly support the stolen election conspiracy theory. This coincides with declining levels of trust, overall, in traditional media by Republicans over the last five years (Democrats’ confidence in them remains stable, and in some cases, has strengthened).
Declines in trust in traditional media by Republicans – with the notable exception of Fox News – coincide with a recent increase of illiberalism of the Republican Party over the last generation. In January of 2020, the VDem Institute released the results of an illiberalism data set that gauges the extent of commitment to democratic norms a party exhibits before an election. Indicators comprising the index include low commitment to political pluralism, disrespect for fundamental minority rights, and encouragement of political violence. It found that the Republican Party has retreated from upholding democratic norms, and that its contemporary rhetoric is closer to authoritarian parties – including AKP in Turkey – than to typical center-right parties in democracies such as the UK. Additionally, it found that the Republican Party in 2018 was far more illiberal than almost all other governing parties in democracies. Additionally, V-Dem reports that the United States is the only country in Western Europe and North America currently suffering from substantial autocratization.
The First Amendment role of the press is to serve as a powerful antidote to government abuses and to keep elected officials accountable to the people, which is underpinned by the principle that informed public opinion is the most potent of all restraints upon misgovernment. Far from serving this important democratic function, due to its relationship with the Republican Party – in particular, Donald Trump – Fox News succeeds in doing the opposite by misinforming its viewers regarding the most fundamental elements of a liberal democracy, including the integrity of the electoral system, the transfer of power from one presidential administration to the next, and the legitimacy of the country’s leader. In so doing, the network is instrumental in fomenting an ill-informed electorate incapable of making informed decisions at the ballot box, thereby weaking American democracy.
It is time to stop treating Fox News as a legitimate member of the press and the Republican Party as a legitimate party in a liberal democracy. Both are clear and present dangers to American democracy, made more dangerous by their close relationship with each other.
Dr Eliza Bechtold is a Lecturer in the School of Law at the University of Aberdeen.