It might not save Sean Hannity, either.
Dominion Voting Systems is suing Hannity and Powell for defamation.
Sidney Powell, a Trump lawyer and high-profile promoter of his election lies, went on Hannity’s show on November 30, 2020, and said, “There was a whole plot going on and a lot of people involved in this.” Vox says (here) Powell “baselessly accused voting machine companies, including Dominion, of using their machines to ‘trash large batches of votes that should have been awarded to President Trump’ and to ‘inject and add massive quantities of votes for Mr. Biden.’”
That was blatantly false, and Powell was either insane or incredibly careless with someone else’s reputation, business, livelihood, and personal safety (Dominion execs received death threats). It doesn’t matter which, because insanity isn’t a defense in a defamation trial.
Hannity, in a recent deposition, testified that he “did not believe it for one second.” But he gave Powell a soapbox and let her rant to his credulous audience.
Hannity isn’t a journalist and doesn’t deserve the First Amendment protections of one. He’s a propagandist who makes a lot of money by peddling far-right storylines. During the Trump era, a lot of those stories were fabrications and lies. Liken him to an arsonist pouring gasoline on a fire. You should have no sympathy for him, and neither should a jury; even though he may not be the actual liar, he’s responsible for Powell’s lies the same way any publisher is.
Powell, as the actual liar, is taking a different tack. She can’t argue she didn’t make those statements; they were broadcast to the entire world. So her lawyers are trying something else: They’re arguing “no reasonable person would conclude that the statements [Powell made] were truly statements of fact.”
That may be so. In fact, it’s probably so. Her lies were so far-fetched it’s likely no thinking person believed her. But we live in a world populated not only by reasonable people, but also unreasonable people. Arguing that reasonable people won’t believe your lies doesn’t make you less a liar, nor is it a legally-recognized defense against a defamation claim.
This spells trouble for Fox News because, in November 2020, Hannity’s Fox show was the most-watched program on cable TV. And Dominion’s lawyers are going after deep-pocketed Fox News; as the Vox article says,
“In addition to Hannity, Dominion has also deposed other Fox anchors — including Jeanine Pirro and Tucker Carlson, as well as Shepard Smith, who has left the network — and high-profile figures in the Fox News empire. That includes members of the Murdoch family. … NPR reported that Dominion attorneys are trying to prove that Lachlan Murdoch, who presides over those media properties, permitted or even encouraged Fox News to broadcast lies about fraud in the 2020 election despite knowing them to be false. They have also deposed his father, Rupert Murdoch.”
Hannity and Powell can’t pay a billion-dollar legal judgment, but Fox and the Murdochs can. And should. Promoting Trump’s election lies was extremely profitable for them. It brought them a huge audience. And that audience of credulous, unthinking, unreasonable people inflicted vast harm — threats against political leaders and election workers, attacks on law enforcement officers, and so on. But this lawsuit only seeks recompense for the harm to Dominion and its employees.
It’s interesting, encouraging, and telling that “Judge Eric Davis has rebuffed Fox’s request to throw out the suit on the basis of several protections for journalists in First Amendment law.” Fox claims it was “merely reporting on newsworthy allegations made by prominent actors against public figures,” but the judge isn’t buying it. Besides, this case is about the harm to Dominion, not the public figures, caused by the false conspiracy theories that Fox broadcast to its viewers. Dominion says, “If this case does not rise to the level of defamation by a broadcaster, then nothing does.”
As in all things, there has to be a line somewhere, and this is a good opportunity to draw it.
But whatever else happens in this case, Powell’s “no reasonable person” defense should and likely will get laughed out of court, because inciting unreasonable people is far more dangerous than lying to the kind of people who realize you’re lying and dismiss your lies. They weren’t the people who threatened to kill Dominion’s executives and employees.