by Ryan McMaken, Mises Institute:
In March 2021, Dominion Voting Systems—a company that produces electronic voting equipment and software—sued Fox New Channel for $1.6 billion. Dominion claimed the company had been harmed by allegedly false claims made by Fox program hosts and guests about Dominion’s role in alleged efforts to rig the 2020 US presidential election. In April 2023, Fox New Channel settled with Dominion for $787.6 million. Dominion still has other lawsuits pending against other parties, including Rudy Giuliani and Sidney Powell.
The Fox settlement over a defamation lawsuit comes less than a year after Alex Jones was ordered to pay $965 million in a lawsuit over things he said on his show about the Sandy Hook massacre. Both lawsuits were centered around merely saying things that other people didn’t like being said. Both suits were also centered on politically charged topics of public interest. Both lawsuits also demonstrated how defamation laws can be used to silence people and punish them for making controversial political statements. Moreover, it’s clear that both Jones and Fox news commentators were expressing these views as journalists.
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The Alex Jones lawsuit was alarming in its own way, as I explained here at mises.org. The Dominion lawsuit, however, is even more baseless and alarming in that it sets a precedent in which a government-funded monopoly can sue private parties over statements about public policy. Moreover, it is clear that the US regime—along with many other regimes throughout the West and the world overall—have ramped up efforts to limit free speech under the guise of combatting “misinformation.” The White House and Big Tech have worked together to deplatform and silence users who say things the regime doesn’t like. A second important tool in silencing critics is defamation laws. Defamation lawsuits can be employed by regime allies to silence, impoverish, or otherwise harass critics who make statements regime agents find troubling. The Dominion lawsuits are an illustration of how this works.
Why Defamation Isn’t a Real Problem
The very concept of defamation has always been incredibly questionable, and it clearly is incompatible with any serious commitment to free speech. The idea of defamation has always relied on the notion that if Person A says something nasty about Person B, then Person C is going to simply believe those nasty things and act accordingly. Thus, we are required to believe that if my neighbor tells my wife that I’m an adulterer, then my neighbor is somehow at fault and has inflicted “damages” if my wife chooses to believe him. Of course, my wife might instead choose to notice that I rarely leave the house and most of my socializing consists of one-hour 7-a.m. breakfast meetings. But, even if my wife chooses to believe this neighbor and divorces me. That’s bad news for me, but how is this the fault of the neighbor? He was just saying words that other people are free to believe or not.
In this scenario, it was my wife who did the damaging things. Human beings are not automatons who just believe everything some other person tells them. The concept of defamation is built upon this absurd supposition. We might also note that historically in the United States, legal judgements against convicted perpetrators of defamation were generally small fines, and the suits were designed to simply allow the plaintiff a forum to publicly defend himself.
Governments (in America) Can’t Sue for Defamation
In the past, government officials in the United States were even known to sue critics for defamation on grounds that critical statements about government personnel inflicted damages on policy makers and elected officials. Policy makers in the state of Florida are now trying to revive the execrable practice. Governor Ron DeSantis, for example, has supported legislation that makes it much easier for a variety of parties—including government employees—to sue for defamation. The legislation also removes the longstanding requirement that defamation plaintiffs prove malice on the part of the defendant. Legislation like this greatly expands the ability of people in power to sue and silence critics for the “crime” of saying certain words that might cast state agents in an unfavorable light.
Government employees employed this strategy in the past, but this came to an end with the 1964 case New York Times v. Sullivan. This was a case in which a government employee—specifically a police commissioner—sued a newspaper for saying things some bureaucrats did not like. The US Supreme Court concluded:
For good reason, “no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.”
The reasons for this should be obvious. Government agencies enjoy monopoly privileges and are funded through the coercive collection of taxes. Even the most blue-pilled regime sympathizer can probably see the danger that arises from also granting this monopolistic agency the right to sue people for criticizing it. After all, the liberal notion of “free speech” was codified in documents like the Bill of Rights primarily for the purposes of ensuring critics of the regime would be legally immune from the regime’s attempts to retaliate.
Fake “Private” Organizations Should Never Be Able to Sue for Defamation
This brings us to “private” organizations like Dominion.
In its lawsuits against Fox News and others, the company is proceeding as if it were just another private company. The basic claim is “we’re just a poor, innocent group of entrepreneurs being defamed!”
But “private” is clearly not an appropriate term for describing a company like Dominion. And “entrepreneurship” has very little to do with it. This is a company that is overwhelmingly geared toward serving only government agencies and performing what can only be described as government services. Dominion provides ballot-counting software and related services. Its only “clients” are apparently government agencies. As such, Dominion’s revenue comes from tax revenue. The company and its founders are not “entrepreneurial” in any sense except in the sense of a “political entrepreneur,” who seeks profit through government subsidies and contracts. The company does not interact in a free and open marketplace where real customers exchange money with the company in exchange for a good or service. Rather, taxpayers are forced to support Dominion through taxation, and taxpayers have no meaningful say in whether or not they “pay” Dominion. In short, the relationship between Dominion and the people who ultimately fund Dominion is one of coercion and exploitation.
