Ciara Torres-Spelliscy, who teaches constitutional law at Stetson University, told the Guardian, “Dominion has a very strong case against Fox News — and against OAN for that matter. The reason Dominion is suing is because Fox and other right-wing news outlets repeated vicious lies that Dominion’s voting machines stole the 2020 election from Trump for (Joe) Biden. But all of these conspiracy theories about Dominion’s machines were just pure bunk, and Fox as a news organization should have known that and not given this aspect of the Big Lie a megaphone.”

Torres-Spelliscy added, “What’s particularly bad for Fox is (that) Dominion asked them to stop and correct the record in real time, and Fox persisted in spreading misrepresentations about the voting machine company.”

When the U.S. Supreme Court, under Chief Justice Earl Warren, handed down its ruling in New York Times v. Sullivan back in 1964, it was clear about what does and doesn’t constitute defamation. The High Court made it clear that an honest mistake is not “defamation” — there has to “actual malice.”

Many years later, former Alaska Gov. Sarah Palin sued the Times for defamation. But she couldn’t prove “actual malice” and lost the case. Now, far-right Justice Clarence Thomas, often slammed as an authoritarian by his critics, is calling for the High Court to revisit the “actual malice” standard and make defamation easier to prove, which is ironic in light of how quick right-wing media outlets are to push outlandish conspiracy theories; if Thomas had his way, there could be a lot more defamation lawsuits against Fox News and its competitors.

Torres-Spelliscy stressed that there are major differences between Palin’s defamation lawsuit against the Times and Dominion’s lawsuit against Fox News.

“In the Palin case, the New York Times quickly corrected the mistake about Palin that had been added while an article was edited,” Torres-Spelliscy told the Guardian. “By contrast, Fox News kept up the bad behavior and repeatedly told myths about Dominion’s voting machines. This is likely why judges in several of these Dominion defamation cases have not dismissed them.”