Lawsuits Against Networks for Challenging Elections Endanger Free Speech | Opinion

Companies that make vote counting machines are suing Fox and others for defaming them. I'm advising clients in several lawsuits involving voting machines, and I'm a frequent contributor to some of these media. So, I am not unbiased. Nor am I unbiased regarding the First Amendment, which I believe is endangered by these lawsuits.

My own personal view is that the 2020 election was generally fair, and President Joe Biden was properly elected. But I am not so sure about the widespread use of machines in counting votes. My general concern about all machines is underlined by the apparent refusal of the voting machine companies to allow experts to examine their inner workings to determine if they are susceptible to hacking in future elections. When the government delegates a governmental function like vote counting to private companies, these companies must be transparent: they should not be permitted to hide behind claims of private business secrets. And the media should be allowed to challenge and criticize them without fear of being subjected to expensive lawsuits by giant corporations.

Moreover, the media should be free to challenge the results of any elections—even if the claims turn out to be false. I am convinced that the 2020 election was fair, but millions of voters believe—or claim to believe—otherwise. The open marketplace of ideas permits the media to give voice to dissenting views, even if they themselves disagree with them.

In the Fox case, discovery has revealed that many at the network, including owners and anchors, had serious doubts about the claims of vote fraud being espoused by some of their guests. Yet they put them on the air, and the network is now being subject to defamation suits because of what the guests falsely claimed, and the anchors didn't dispute. The implications of these suits for the First Amendment rights of the network and its viewers are serious. As a result of these suits, several of the networks stopped showing guests who challenged the elections or who raised questions about the machines. Must all networks present only the majority narrative on controversial issues of national importance? Should they be permitted to present guests who honestly but wrongly believe a counter narrative? Shouldn't the viewers be permitted to choose among competing narratives?

It is interesting to contrast these lawsuits with the lawsuit I'm currently bringing against CNN, which is very different. CNN doctored and edited tapes in which I had argued that a president could be impeached for unlawful, illegal, or corrupt criminal behavior. Their paid commentators and employees then maliciously lied, claiming that I said that a president could not be impeached even if he committed serious crimes such as extortion, bribery, or murder—the exact opposite of what I actually said. The First amendment does not protect such malicious and deliberate defamation designed to discredit individuals with views different from the networks. It does protect honestly held opinions which turn out to be untrue. As former Chief Justice William Rehnquist put it: "Under the First Amendment there is no such thing as a false idea." But there are such things as false defamatory facts that are maliciously published in an attempt to destroy the credibility of a person with opposing views, which is what CNN did to me.

The line between the Fox and CNN lawsuits may not always be clear, but it is an important line to preserve. Fox is being sued for allowing opinions and ideas that are essential to an uncensored discussion of controversial and disputed theories regarding a past presidential election, as well as future elections in which votes are to be tabulated by machines. I have accused CNN of maliciously lying about a single recorded statement that I made in the past, concerning which their commentators deliberately and maliciously lied. This is an important distinction to maintain.

We are a deeply divided nation in which passions run high and opinions dramatically differ. As Pat Moynihan used to say: "Everyone is entitled to their own opinions, but not to their own facts." The line between the two is also not always clear: zealots have wrongheaded opinions about facts. Different media "report" facts differently. Distrust in reporting is rampant and often justified. So let the open marketplace be the judge of who is right and wrong. There is no guarantee that the marketplace will always get it right. But to paraphrase Churchill, it may be the worst method, except for all the others that have been tried over time.