The Right-Wing War on Free Speech Could Backfire

Updated at 11:50 a.m. ET on September 7, 2022

Fox News is in legal trouble. The media giant is facing lawsuits from two voting-machine companies over segments it aired with Donald Trump surrogates parroting the former president’s made-up allegations that the 2020 presidential election had been thrown by compromised voting machines—insinuations that Trump’s own advisers told him did not hold water.

Defending their client, Fox News’s attorneys on free-speech doctrines established by the 1964 landmark Supreme Court case —specifically, the standard of “actual malice.” This standard says that when it comes to public figures, a speaker must know their statements are false or display “reckless disregard” for whether the statements are true in order to meet the requirement for defamation. In that particular case, the Montgomery, Alabama, public-safety commissioner, L. B. Sullivan, sued over an ad it had published calling for donations on behalf of the civil-rights leader Martin Luther King Jr. Although the ad made some factual errors regarding the police department Sullivan oversaw, the Courtwas not liable, because the purpose of the First Amendment was to guarantee that “debate on public issues should be uninhibited, robust, and wide-open,” and that such debate “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”