There are a tangle of variations in U.S. media libel law, viz:
1. Does the speaker (defendant) carry a big stick?
a. Donald Trump vs Ted Cruz (politician vs politician) you can get away with implying involvement in the JFK assassination.
b. Is it the media company or a person who the media company quotes?
i. If it is the media company does it matter if the company speaks as
one, as in an editorial, or as just one voice, e.g. in an opinion piece
by a single speaker?
ii. Does it matter if there are dissenting voices published in the media company?
iii. If the speaker is an outside person who the media quotes, is the person prominent or reputable?
A. If prominent outside speaker does (s)he have to be reputable as well?
(1) Does prominence alone convert speech into unactionable "newsworthy" speech?
(2) If prominent and reputable?
B. Reputable but not prominent?
2. Does the person who is the object of the speech (plaintiff) carry a big stick?
a. If the plaintiff is a public person the standard is much higher
("actual malice" or "reckless disregard for the truth") for the media
company to be held liable than if the plaintiff is a private citizen.
3. Were falsehoods spoken?
4. Were the falsehoods believed false by the media company (persons speaking the falsehoods)?
The touchstone case is New York Times v Sullivan (1964). The matrix there was:
1. Initially, private persons.
a. ADVERTISEMENT from private persons accepted by NYT.
2. Public official, the police chief in Montgomery Alabama.
3. There were "inaccuracies" but not outright, made-up lies.
4. "Inaccuracies" not caught or recognized as false at time of publication.
In that matrix SCOTUS ruled that in accepting the ad the Times was speaker. As a public official, the police chief, Sullivan, had to prove that the Times acted with "actual malice" or "reckless disregard for the truth" toward Sullivan in accepting the advertisement.
SCOTUS ruled for NYT.
SCOTUS also ruled for NYT in a suit brought by Sarah Palin. The matrix there was:
1. Speaker was media company (editorial).
2. Object of speech was public official.
3. Egregious falsehood.
4. Egregious falsehood not caught or recognized as false when published (later admitted).
The actual malice/reckless disregard standard was applied.
In Dominion v Fox:
1. a. Media company, company employees and outside persons are defendants/speakers.
i. Head of media company (Rupert Murdoch) did not speak falsehoods pesonally. Employees of company (Murdoch) did speak falsehoods and spoke as one. Murdoch could have stopped employees from repeating falsehoods but did not.
ii. Dissenting employee voices silenced.
iii. Outside, prominent public officials and private persons spoke falsehoods repeatedly which were rebroadcast by media company.
A. The Outside, prominent public officials and private persons who spoke falsehoods which were rebroadcast were not reputable.
(1) "Newsworthy" "Dominion’s lawyers say Fox is arguing that it has no legal responsibility for broadcasting even the most horrible allegations, knowing they are false, as long as they are deemed newsworthy." (AP)
(a) “Under Dominion’s approach, if the president falsely accused the vice president of plotting to assassinate him, the press would be liable for reporting the newsworthy allegations so long as someone in the newsroom thought it was ludicrous. [thus making the false speech "knowing" and therefore actually malicious]. Such a rule would stop the media in its tracks,” Fox lawyers said in court papers.
(b) "Dominion has to show that a reasonable audience could conclude that
someone at Fox was making these allegations, not just the interview
subjects" (AP quoting First Amendment attorney Lee Levine).
2. Private entity plaintiff.
3. Falsehoods were spoken, over and over again.
4. Falsehoods were knowing, i.e. believed false by employee-speakers and therefore actually malicious. (“One of the defenses is that even false speech about public figures is protected so long as it is believed by the speaker,” First Amendment attorney Floyd Abrams said. “But no one at Fox appears ready to say that he or she did believe the assertions ... and there now appears to be substantial evidence that no one there at Fox did so. It’s a major blow.”)
"Still, Levine said, Dominion has the strongest defamation case he’s seen in 40 years of being involved in the topic." (AP)
As a private entity (small stick) Dominion cannot fight back with speech-on-speech. The standard of proof for libel is less than in, e.g. Trump vs Cruz. Dominion, in my opinion and the opinion of others, has proven the public official standard, i.e. "actual malice"/"reckless disregard". Fox is going to lose.