Damning evidence that Dominion Voting Systems uncovered during discovery in its defamation case against Fox News seems to have played a decisive role in the settlement that the parties reached this week. That outcome suggests that satisfying the "actual malice" standard for defamation cases involving public figures may not be as difficult as critics sometimes imply. At the same time, it underlines concerns that getting as far as discovery may be impossible when courts require that plaintiffs first make a plausible case that they can meet that test. After the 2020 presidential election, Fox repeatedly promoted a conspiracy theory alleging that Dominion participated in a massive election fraud scheme aimed at denying Donald Trump a second term. If Dominion's case had gone to trial, the company would have had to present "clear and convincing evidence" that Fox either knew that story was false or recklessly disregarded that likelihood.
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