.JessicaLevinson: Dominion is fighting for free speech. Fox News is only pretending it is.
that the plaintiff prove that the defendant published a false statement of fact about the plaintiff that caused the plaintiff harm and that the defendant did so with actual malice. The judge has already concluded that Dominion has proved much of its case and that Fox News cannot avail itself of the specific First Amendment defenses it sought to use as an excuse to escape liability for its torrent of lies.
The actual malice requirement means we can punish people for their speech only if they knew they were spreading lies or had “” about the truth of their statements. A speaker who is merely negligent and should have known better before spreading lies will not be punished for those lies in a case like this one. It would be too heavy an infringement on the freedom of speech.
Defamation law allows us to punish people for their speech, and that is appropriate, but only when a plaintiff can clear the difficult hurdles demanded of a defamation claim. The existence of defamation law is an acknowledgment that some speech is so vile and harmful that the First Amendment will allow us to punish the speaker. In fact, penalizing people for defamatory speech is actually a way of bolstering one of the main theories behind the First Amendment —.
The actual malice requirement means we can punish people for their speech only if they knew they were spreading lies or had “serious doubts” about the truth of their statements. Fox unsuccessfully tried to wrap itself in two specific First Amendment defenses, often used by members of the media to defend against defamation suits, and failed on both counts. First, the judge ruled that Fox could not rely on something called the “
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