Syndicated columnist Susan Estrich: Fox blinked

By Susan Estrich

Fox blinked last week. A very big blink it was. By agreeing to write an insanely big check, it avoided an even bigger embarrassment. Simple as that.

A day or two of miserable headlines versus a week or two of worse ones. The First Amendment takes a hit, but not a knockout punch. It's all fake news.

Already below the fold on the second day. Much better than Rupert Murdoch on the stand.

Of course the whole thing should never have happened. If Roger Ailes were alive and running things, it wouldn't have. He realized there was actual value in having a news division. Even in the new Fox, it shouldn't have happened. Murdoch should have been protected. Enough said.

And journalists should do better than this.

This wasn't journalism. You shouldn't put false information on the air. And you certainly shouldn't do it when you know the information is false.

The standard set up unanimously by the United States Supreme Court in New York Times v. Sullivan rightly holds journalists responsible when they recklessly disregard the truth, which Fox News very clearly did here.

Actual malice is the legal test, defined as reckless disregard for the falsity of the underlying story. That's why they paid north of $700 million dollars, Mrs. Lincoln.

Money talks. That much money screams bloody murder.

And the emails? They lay down the whole case. The press lies. And does so knowingly and maliciously.

But we do want to be careful that in our zeal to curb our anti-press enthusiasm, we don't go too far.

The unholy alliance of the liberal-hating media and the press-hating public creates the opportunity for real limits on press freedom. That's what we are looking at.

It's not just the verdict in this case. It's overruling the Sullivan opinion altogether. There are very few voices left worrying that we could go too far. But we could.

The libertarians are getting lonelier and lonelier. No one wants to stand up for Fox News, even when we should.

In the short run, Dominion has other fish to fry. There will be more tests to come, and time will tell whether Dominion will keep pushing to roll back Sullivan's protection entirely and whether future targets will be as unpopular as Fox News.

But we need look no further than the Soviet Union to remember that press freedom is a gift to be treasured and never taken for granted, and absolutism in its defense is always essential.

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