This week, Fox News agreed to pay Dominion Voting Systems $787.5 million to settle the defamation case that Dominion had brought against Fox for damaging its reputation by making false claims that Dominion had switched votes for Donald Trump to Joseph Biden in the 2020 presidential election. This settlement comes on the heels of several high profile defamation cases, such as the case between Johnny Depp and Amber Heard that resulted in multimillion dollar jury awards for both of them that ultimately were settled while the case was on appeal with Heard reportedly agreeing to pay Depp $1 million. These cases have renewed interest in defamation litigation.

In 1964, the Supreme Court of the United States held in New York Times v. Sullivan that plaintiffs who were public officials could not bring a successful claim for defamation unless the defendant acted with malice, in other words knew or recklessly disregarded the falsity of the statement. Applying the First Amendment, the Supreme Court further narrowed the common law tort of defamation in cases after New York Times v. Sullivan. In 1996, Congress enacted the Communications Decency Act, Section 230 of which provides immunity for online computer services for liability based upon content posted by third parties. New York Times v. Sullivan and Section 230 have combined to make it much harder for plaintiffs to bring successful defamation claims. However, as recent cases show, wining defamation cases, is not impossible.

While winning a defamation case is not impossible, it is not easy. One thing that all of the high profile defamation cases have in common is that the plaintiffs spent a great deal of money on discovery and trial preparation in order to prove that the defendants acted with malice in making false statements. Recently I have seen new interest among clients and potential clients in bringing defamation actions. I am much more bullish about potential defamation cases than I would have been five or ten years ago. However, clients have to be prepared to commit significant resources if their defamation cases will be successful.

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