Edward Steinberg, NY DAILY NEWS, December 29, 2020 The late New York Sen. Daniel Patrick Moynihan famously said that “Everyone is entitled to his own opinion, but not his own facts.”
Last week, right-wing “news” networks Fox News, Fox Business, Newsmax and OAN got a painful, awkward lesson in the legal meaning of Moynihan’s phrase.
Since the election, these networks have broadcast their opinion, and that of President Trump’s, that the 2020 election was stolen. Of course, they have a First Amendment right to state this.
But, lacking any evidence whatsoever, Trump, our fabulist-in-chief, in tandem with these Trump-echo networks, made up “facts” to lend support to this opinion: conspiracies involving George Soros; midnight ballot dumps; biased poll workers; and electronic voting systems from Dominion Voting Systems and Smartmatic that supposedly switched votes from Trump to Biden in swing states.
These conspiracy theories even forced one election systems worker into hiding because of death threats.
And here is where the networks crossed a line. Moynihan’s famous aphorism actually describes defamation law perfectly. False statements of facts, even if mixed with opinion, can give rise to lawsuits by those reputationally injured, even against the press.
And so, Smartmatic and Dominion merely threatened defamation lawsuits — and many of these networks caved, issuing not only specific retractions but also admissions that they possessed no evidence of ballot switching or of the dark conspiracies that they had been advancing.
Normally, one would not think of corporations as the go-to defenders of truth and democracy, but in this case, it was their threat of defamation lawsuits that brought forward truth, and that hopefully will increase confidence in the outcome of our election.
In the famous story, it’s a child who calls out the emperor for having no clothes; today, it’s voting machine companies. Tomorrow, it may be poll workers falsely accused of improperly scanning ballots, voters falsely accused of illegal registrations, not-for-profits falsely accused of illegal ballot harvesting, and anyone in a news story, or a widely-circulated Facebook post or Tweet, who is falsely accused of illegal activity in connection with an election.
Smartmatic and Dominion are on to something. The explosion of falsity by propagandist networks must be met with a flood of defamation suits.
And while social media companies themselves might be — for now — able to escape such suits because of Section 230 of the Communications Decency Act of 1996, individual users of Twitter, Facebook, and Instagram with large followings should know that they might be held liable for spreading specific lies that sully the reputation of businesses or individuals.
Lawsuits for intentional infliction of emotional distress can be another tool in the fight for truth against right wing-conspiracies. Fox News found this out when the Second Circuit held that the parents of murdered DNC staffer Seth Rich could sue over a segment purporting to link Rich to WikiLeaks in furtherance of an alt-right theory that his death involved leaked DNC emails.
Legislators, too, can help. New York should consider laws to extend the statute of limitations for defamation suits, mandate double or treble damages in egregious instances, and protect whistleblowers who bring forward evidence of malicious and deliberate false reporting.
The First Amendment would not be implicated by any of these laws, nor would there likely be much increase in the number of defamation suits filed. Falsely yelling “fire” in a crowded theater has never been protected by the First Amendment; falsely yelling that someone burned ballots is not protected either.
Steinberg is the president of the New York State Trial Lawyers Association.
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