Why would news outlets police themselves from putting out false information? Idealistically, there is an entire discipline devoted to answering this and other questions. The name of the game is journalistic ethics.

Ethical journalism requires publications to take pride in putting out fair and honest information. To do otherwise could damage not only the reputation of the news outlet but also create real consequences for communities. 

Here’s a hypothetical. Imagine a local newspaper reported a rumor that classes were canceled next Monday. Then, this rumor turned out to be unsubstantiated. Those who took the information as fact could miss assignments and their grades would suffer. 

Would the Iowa State Daily face consequences for this action? Would those consequences be an infringement on the free press? One would hope they would indeed receive blowback for reporting erroneous news but also sensibly worry about setting a precedent for punishing any controversial reporting in the future.

This battle plays out on the national stage every so often. The axe our American system commonly wields as punishment for “bad” journalism: defamation lawsuit. A defamation lawsuit can be distilled down to two of its most important attributes: information must be published that is (a) false and (b) cause harm to an individual or organization. A publication or news source puts out information that meets those two criteria, and it may be subjected to a day in court. 

Here is the big story: Smartmatic USA, a voting technology company, is suing Fox News for defamation that occurred in the weeks preceding the 2020 election. The arguments presented in Smartmatic’s lawsuit are firm and unwavering. According to the lawsuit, Fox News (a) reported that the election was stolen from President Donald Trump and (b) reported Smartmatic had a role in stealing the election. Smartmatic argues this false reporting damaged their business and bolstered Fox’s ratings.

An example of the kind of false rhetoric Smartmatic believes damaged their company is present in quotes like this: Fox News host Maria Bartiromo said, “Why do you think we went on here? Because when we spoke on Sunday, we talked about the software made by Smartmatic that was changing votes from Trump to Biden.” 

Fox host Lou Dobbs also aired claims against the election and Smartmartic on his program, and Fox News ended his show shortly after Smartmatic filed their lawsuit.

These types of claims by Fox News correspondents have yet to be supported by evidence and are, therefore, widely considered to be false.

The case for Fox News

Perhaps the most difficult claim for Smartmatic USA to prove will be that Fox News hosts believed the election was valid and deliberately reported false information to mislead the American public and, hence, damage Smartmatic USA.

It is here that the notion of defamation as a vehicle toward censorship comes onto the scene. Forcing media networks to face controversy simply for reporting controversial information would be a direct violation of the freedom of the press. If Fox News did not act with deliberate malicious intent, they may have felt they were doing their jobs as correspondents, no matter how unfounded their claims turned out to be.

The case for Smartmatic USA

Large-scale defamation lawsuits against companies are rare but not entirely unprecedented. In 2017, the American Broadcasting Corporation paid the beef industry $177 million after facing a lawsuit over false reporting concerning pink slime. However, in the case of Smartmatic USA v. Fox News, the network issued a motion to dismiss the case and has given no indication of paying a settlement. 

It is also likely that the Fox News rhetoric will have genuine consequences for Smartmatic’s company. Prior to the 2020 election, the company had high national exposure. Now, the mention of their name stirs up memories of debates in the aftermath of that same election. These debates were, at least partly, assisted via questionable reporting from Fox News. 

Large companies respond to having financial consequences for their actions. In this case, a Smartmatic victory may be a large enough consequence to inhibit future reporting that is viewed as conspiratorial, fringe or false. 

The rhetoric broadcast by Fox News against the 2020 election had severe consequences, not only for Smartmatic but between our nation’s relationship with democracy as a whole. A violent attack on the Capitol was, in part, fueled by the false rhetoric that the election was the result of cheating and fraud.

The media needs to take a keen inventory of the implications it wishes to broadcast and analyze the validity of the claims it views as worth dissemination. To do otherwise is reckless and irresponsible.

It is likely a Smartmatic victory in this lawsuit will motivate news networks toward the proper vetting of incoming information and repair what seems to be a schism of partisan fact-finding between networks. Until the case is settled, it is too soon to tell.