UPDATE (April 18, 2023, 6:29 p.m. ET): Fox News agreed to settle Dominion's defamation lawsuit for $787.5 million on Tuesday.
As my colleague Jordan Rubin discussed for Deadline: Legal Blog last month, the legal standard that Dominion has to meet to prove Fox defamed it is known as the actual malice standard. Put another way, Dominion must prove that Fox either actually knew that the statements it put on air were false, or that it recklessly disregarded their falsity.
The conventional wisdom is that actual malice is a high bar to cross. And as Jordan has explained, at least two of the conservative Supreme Court justices, Clarence Thomas and Neil Gorsuch, recently have signaled their desire to reexamine the court’s precedent in New York Times v. Sullivan, the nearly 60-year-old case that is the genesis of the actual malice standard.
The Dominion v. Fox News defamation trial began Tuesday. Follow our live blog for the latest updates and expert analysis at msnbc.com/dominiontrial.
But Thomas and Gorsuch are hardly alone in their willingness to topple the actual malice rule. When he’s not signing a 6-week abortion ban in the quiet of night or floating the prospect of building a state prison adjacent to Disney World, Florida Gov. Ron DeSantis has made his “open antipathy toward ‘corporate media’” a centerpiece of his state policy agenda.
A bill DeSantis has championed in the Florida legislature not only aims to make it easier to sue major media like Fox News for defamation but contains other provisions, including a presumption that reporting cited to anonymous sources is false, that even fellow conservatives warn could endanger free speech and political commentary across the ideological spectrum.
At a time when Fox is fighting to survive Dominion’s mammoth defamation claim under a standard DeSantis thinks is already too protective of cable news, DeSantis’s campaign against corporate media is potentially awkward. After all, candidate DeSantis could have exploited Fox hosts and executives’ now-public disdain for Trump — and its desire to turn the page on the Trump era — by embracing Fox, its audience, and what seems to be their chief organizing principle: MAGA, but without the Original Red Hat.
DeSantis’ war on defamation law as it exists may win him favor with newer, fringier outlets, but it also potentially puts him at odds with the biggest prospective megaphone for his 2024 campaign: the Fox News ecosystem. Whether that’s a risk worth him taking will turn, in part, on the outcome of this trial — and the resulting chink in Fox’s armor.