Column: Should Fox News have to pay for its shameful election coverage? A court will decide

Donald Trump’s lawyers Rudolph W. Giuliani and Sidney Powell said a lot of outrageous things in the weeks after the 2020 election, when the president was desperately trying to cast doubt on the outcome of the race. Among other things, they peddled baseless conspiracy theories about two companies they said were engaged in election fraud — Smartmatic and Dominion Voting Systems.

If they defamed the companies, Giuliani and Powell should certainly be held accountable.

But how about their buddies over at Rupert Murdoch’s Fox News? Should the network be punished, too, for airing the baseless allegations? After all, Fox News featured numerous news stories and commentaries on the supposed role of the two companies in “stealing” the election. Fox invited Giuliani and Powell onto the air over and over, allowing them to repeat these falsehoods.

Was Fox a co-conspirator in the effort to hoodwink the American people? Or was it merely doing its job by covering a newsworthy national debate?

Those will be key questions in the $2.7-billion defamation suit brought by Smartmatic against not just Giuliani and Powell, but also Fox News and several of its hosts. (Dominion has also filed a $1.6-billion defamation suit.)

It all dates back to the weeks after the election, when Powell and Giuliani made a lot of wild statements they never backed up, including that Smartmatic had been founded at the direction of Venezuelan leader Hugo Chavez to rig elections. They alleged, again without evidence, that the two election technology companies “dumped” and “flipped” votes in numerous states to ensure Trump’s loss. They alleged a vote-stealing scandal of historic proportions and “massive corruption across the country.”

And Fox News allowed them to repeat those allegations ad nauseam on network shows.

This is not an open and shut case. For journalists like me, it raises some troubling issues about reporting on controversial issues.

In filings late last month, Fox insisted that it was the newsworthy allegations, not Fox’s coverage of them, that put Smartmatic in the spotlight, and said the lawsuit posed “a glaring threat to core First Amendment freedoms.”

As Fox lawyers put it in asking for the suit to be summarily dismissed, “providing a forum for newsworthy individuals to make claims that can be tested in the crucible of robust debate is too important to allow suits against the media, rather than against those making the claims.”

It’s hard to argue with that broad statement of principle.

But is it true that Fox was merely providing a neutral forum for a fair testing of newsworthy claims?

I’m no lawyer and can’t tell you exactly how the courts will — or should — rule under the law in New York state where the suit was filed. To prove defamation under the U.S. Supreme Court’s 1964 ruling in New York Times vs. Sullivan, Smartmatic may have to show not only that false statements were made, but also that Fox either knew they were untrue or published them with reckless disregard for the truth. That’s a high bar.

But I can tell you as a journalist what makes the difference between covering a story responsibly and irresponsibly.

It’s not enough to say in your own defense: “Hey, we were just quoting someone else.” Of course it was newsworthy that the president’s representatives were making the allegations, but in covering a controversial story like this one, it was Fox’s journalistic obligation to do so fairly. It should have done enough of its own reporting on the wild statements to distinguish for viewers between facts and unsubstantiated assertions, making clear what it knew and what it didn’t know. It should have been careful about attribution, so viewers could evaluate the assertions in their proper context.

Fox should have asked the Trump team for evidence to back up its explosive allegations, and if none was forthcoming, Fox should have pointed that out clearly. Even on its “opinion” shows, it should have been scrupulous in noting that the allegations against Smartmatic and Dominion had been denied by the companies and contradicted by election officials and voting experts.

When news organizations follow these rules in good faith, it seems to me, they deserve robust legal protection. There is a reason so many other news outlets that reported on the allegations weren’t named in the lawsuit.

Sure, every now and then Fox hosts acknowledged that Smartmatic and Dominion denied the allegations. Some presenters — including, to his credit, Tucker Carlson — questioned the assertions much more vehemently than others. Fox News says it offered Smartmatic an opportunity to come on the air. And after Smartmatic accused it of airing false and defamatory statements, Fox News aired a segment featuring a non-partisan election expert disputing many of the claims of the president’s legal team.

But for the most part, hosts like Lou Dobbs, Maria Bartiromo and Jeanine Pirro acted more like unskeptical cheerleaders than responsible journalists.

In its court papers, Smartmatic points to 192 statements it says were defamatory in the course of 41 broadcasts, articles and social media posts — and 77 of those statements were made by Fox News hosts themselves.

Pirro, for instance, called Smartmatic “one big criminal conspiracy.” Dobbs thanked Giuliani for “pursuing what is the truth.” He denounced what he said was a “coverup,” and he repeated falsehoods, including that Smartmatic’s servers were located outside the country where they could not be audited.

That’s not “covering” the controversy. That’s passing on bad information, with an endorsement.

Only a few segments noted that Smartmatic denied the allegations, according to the company’s court filings. Almost none of the segments included a countervailing point of view.

It’s no coincidence that after Powell and Giuliani’s disinformation campaign — which was amplified enthusiastically by Fox — more than half of all Republicans came to believe the 2020 election had been stolen, further enflaming American politics and undermining faith in democracy. That, in turn, led directly to the Jan. 6 riot at the U.S. Capitol.

Fox would no doubt characterize its coverage as “fair and balanced.” But true fairness and balance require intellectual honesty and a rigorous search for the truth.