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By Paul Russell, LegalMatters Staff • Three high-profile legal actions in the United States demonstrate that neither U.S. presidents nor powerful news organizations can get away with spreading lies or trampling on someone’s reputation, says Toronto defamation lawyer Howard Winkler.
“When we look at the three-quarters of a billion-dollar settlement Dominion Voting Systems received from Fox News, the US$5-million award given to journalist E. Jean Carroll after she sued Donald Trump for defamation and battery, and her ongoing legal action where she seeks US$10 million more, we see how the American right does not seem to understand the basic rules about defamation,” he says.
“The common theme in these three cases is that the defendants demonstrated either extreme arrogance or stupidity. Stupidity is a strong word, but I think these cases justify using that language,” says Winkler, principal and founder of Winkler Law.
US$787.5-million settlement
In April, Fox Corporation and Fox News reached a US$787.5-million settlement in a defamation lawsuit launched by Dominion Voting Systems. At issue was whether Fox was liable for airing the false claims that Dominion’s ballot-counting machines were used to manipulate the 2020 U.S. election in favour of Democrat Joe Biden over Republican Donald Trump.
“What Fox engaged in, based on what was revealed by their internal communications, was not journalism by any standard,” says Winkler. “Broadcasting information that you know to be false is not journalism.”
“The fact that staff at Fox News exchanged messages that showed that they did not believe the truth of what they were broadcasting demonstrates either a high degree of arrogance or a complete bush-league mentality in the newsroom,” he says.
According to court records, Fox hosts Tucker Carlson, Sean Hannity and Laura Ingraham repeatedly insulted and mocked Trump’s advisors, including Sidney Powell and Rudolph W. Giuliani.
‘Fox News got exactly what they deserved’
Carlson apparently wrote to Ingraham, “Sidney Powell is lying by the way. I caught her. It’s insane,” to which she responded, “Sidney is a complete nut. No one will work with her. Ditto with Rudy.”
“Fox News got exactly what they deserved,” says Winkler.
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He says another lesson from the Dominion case is that people suing for defamation should aim high. The firm had sought US$1.6-billion in damages in the lawsuit filed in 2021.
“The large settlement Dominion received probably could not have been achieved if the case went to trial,” Winkler says. “But the firm grounded the negotiation in such a way that Fox had no choice but to settle for just over three-quarters of a billion dollars. The devastating nature of the internal communications forced Fox to act to avoid further embarrassing their brand.”
The Trump defamation trials
On May 9, a federal jury in New York found that Trump had sexually assaulted and defamed Carroll and ordered him to pay her about $US5 million in damages. The next day during a town hall event, the ex-president repeated claims she had “made up” a story about him assaulting her and he also called her a “whack job” and claimed the trial was “rigged,” according to a media report.
Carroll responded by amending a 2019 lawsuit she had filed against Trump, with her attorneys arguing that awarding her “very substantial punitive damages” would punish the ex-president and “deter him from engaging in further defamation.”
“Trump’s post-judgment conduct demonstrates, like Fox, a high degree of arrogance or stupidity,” says Winkler. “If Trump had just shut up after the verdict and left this within the courts as his appeal is pursued, he would not have got himself into this additional trouble.”
Since the two defamation actions focus on similar statements Trump made about Carroll, “he might have had an argument that since she had already received compensation in respect of the same innuendo she’s not entitled to further damages,” he says.
“But now, by reasserting in public statements that the judgment was wrong, that she is a liar and lacks integrity, he’s repeated the defamatory innuendo,” says Winkler. “And because he’s demonstrated such disrespect for the court and the judicial process, I expect he is going to get hammered when the verdict in the current trial comes down.”
E. Jean Carroll should have asked for more
In light of the large settlement in Dominion vs. Fox News, he says Carroll perhaps should have asked for much more in additional damages.
Unlike most trials where a plaintiff has to show an economic loss to recover damages, there is no hard evidence required in defamation trials, he says.
“What they are compensating for is a loss of reputation and hurt feelings. Those are esoteric concepts,” Winkler explains. “So judges are free, subject to existing jurisprudence, to impose whatever damage award they think is appropriate.”
“Her revised claim is for another US$10-milion but maybe she should have asked for more,” says Winkler. “Maybe $10 million doesn’t reflect the lessons learned from Dominion, which is to aim high.”
