America's First Freedom

Following the contentious presidential election of 2020, Smartmatic’s case against Fox Corporation comes at a critical time for our nation. A time when the very essence of the media has been called into question by the public, policymakers, and even the press itself. 

Judicial Developments - In January 2025, the New York State Appellate Division held that Fox Corporation must face Smartmatic’s $2.7 billion defamation lawsuit. The unanimous decision affirmed that Smartmatic pleaded sufficient evidence of direct participation in the allegedly defamatory broadcasts. At the same time, the court dismissed claims based on vicarious liability against the parent corporation, ruling that Smartmatic had not adequately alleged corporate domination or veil-piercing sufficient to bind Fox Corporation for the acts of Fox News. What remains, therefore, is a direct liability claim, framed around whether Fox itself acted with the requisite “actual malice.”

Parallel Settlements - In a related development, In September 2024, Smartmatic reached a $40 million settlement with Newsmax, the terms of which became public through financial disclosures in early 2025. Half of the settlement has already been paid, with the remainder due, and Smartmatic holds the option to acquire equity in Newsmax. Smartmatic also settled with One America News (OAN) on undisclosed terms. These settlements illustrate a broader pattern of smaller media outlets choosing negotiated resolution over prolonged litigation.

The Record in Discovery - Discovery in the Fox case has revealed internal communications among Fox hosts and

executives, many of which Smartmatic alleges show disbelief in the election-fraud claims that were nevertheless broadcast. Smartmatic argues these documents establish “actual malice.” Fox responds that its broadcasts consisted of reporting on the statements of public officials, lawyers, and the sitting President—all indisputably matters of profound public concern. Fox

maintains that coverage of such claims, even if controversial or inaccurate, cannot be equated with endorsement, and that to treat it otherwise would destabilize the very protections the First Amendment affords. Fox further contends that Smartmatic’s claimed damages are speculative, citing reputational issues and controversies predating 2020, including disputes over its

technology in Venezuela and the Philippines. Adding to the complexity, litigation funder Reid Hoffman, who reportedly committed approximately $25 million to support Smartmatic’s suit, has been subpoenaed for deposition.

The Chilling Effect on Press Freedom -The stakes transcend the parties. If a verdict of unprecedented magnitude were entered against Fox, the consequences could reshape press practice in America. The prospect of multi-billion-dollar liability may deter news organizations from covering controversial subjects, particularly when public figures make allegations of national importance. This potential chilling effect is not theoretical. Smaller outlets, lacking Fox’s resources, would likely self-censor rather than risk litigation. The very vibrancy of public discourse—the rough and tumble of debate, the presentation of competing narratives, the contest of ideas—would be imperiled. The Smartmatic case has broad implications which transcend the specific allegations of defamation, cutting to the heart of First Amendment protections for the press. At stake are the principles that safeguard the free exchange of ideas, the independence of media, and the public’s right to engage in vigorous and often controversial debates on matters of profound public concern. An outcome against Fox could set a chilling precedent, altering the landscape for media organizations, journalists, and the free and open discourse that our democracy demands. 

The First Amendment: A Shield for Free Expression and Accountability - The First Amendment to the U.S. Constitution was designed to ensure that the press can operate without fear of government interference, retribution, or undue restraint. This cornerstone of American democracy guarantees the freedom to investigate, report, and comment on issues of public significance—even when the topics are uncomfortable or controversial. The precedent set in New York Times Co. v. Sullivan (1964) remains a bedrock of First Amendment jurisprudence. The Court established that public figures seeking to prevail in defamation suits must prove “actual malice,” demonstrating that the defendant acted with knowledge of falsity or reckless disregard for the truth. This high standard reflects a deliberate balance: the need to protect individuals from defamatory statements weighed against the imperative to foster an uninhibited and robust exchange of ideas. It acknowledges the inevitability of errors in public discourse and seeks to prevent defamation laws from being weaponized to silence or intimidate the press. The Sullivan standard has been reaffirmed and expanded in key cases, including Gertz v. Robert Welch, Inc. (1974), which distinguished between public figures and private individuals in defamation suits. The Court in Gertz emphasized that public figures, given their access to channels of communication, must meet a higher burden of proof to protect robust debate on matters of public concern. In St. Amant v. Thompson (1968), the Court further clarified the meaning of “reckless disregard,” holding that it requires more than negligence and entails a high degree of awareness of probable falsity.

The Smartmatic case tests the limits of these protections. Smartmatic alleges that Fox amplified false claims about its role in the 2020 election despite knowing their inaccuracy, pointing to internal communications as evidence. If the court redefines “reckless disregard” to encompass editorial choices about reporting on public controversies, it risks diluting the protections afforded by Sullivan. Such a shift would not only imperil Fox but also set a perilous precedent, exposing all media outlets to increased litigation risks whenever they report on divisive or politically charged issues.

The Media’s Duty: Reporting on Matters of Public Concern - Central to the role of a free press is its responsibility to cover issues of significant public concern. Allegations of election irregularities, regardless of their ultimate veracity, are inherently matters of public interest. Journalistic integrity requires media outlets to provide a platform for diverse perspectives, fostering an informed electorate capable of evaluating competing claims and drawing their own conclusions.

This principle was upheld in Philadelphia Newspapers, Inc. v. Hepps (1986), in which the Court ruled that in matters of public concern, the burden of proving falsity rests on the plaintiff. The rationale is simple but profound: requiring the media to prove the truth of every contested claim would stifle reporting on contentious issues and deprive the public of critical information. The Smartmatic lawsuit threatens to conflate reporting with endorsement. Critics argue that Fox’s coverage crossed the line into deliberate disinformation, but the distinction between presenting allegations and endorsing them is often nuanced. Milkovich v. Lorain Journal Co. (1990) clarified that pure opinions are protected unless they imply an assertion of fact. Applying this principle, coverage that features commentary, debate, or speculation should not automatically be construed as defamatory, particularly when it pertains to matters of public concern.

Chilling Effects: A Press Silenced by Fear

The potential consequences of a ruling against Fox extend beyond this single case. The specter of litigation, particularly with the prospect of massive damages, could discourage media organizations from investigating or reporting on controversial topics. Smaller outlets, lacking the resources to defend against protracted legal battles, would be especially vulnerable. The result would be a more timid press, reticent to challenge authority, scrutinize powerful interests, or report on divisive issues.

This chilling effect was a concern in Associated Press v. Walker and Curtis Publishing Co. v. Butts (1967), where the Court extended Sullivan’s protections to public figures. These cases recognized that the free flow of information on significant public matters—whether about political leaders, public figures, or institutions—requires safeguards against excessive liability.

Such a chilling effect would erode the media’s watchdog function, undermining its ability to hold the powerful accountable. The public would suffer the consequences, deprived of the rigorous reporting and critical analysis that are essential to a functioning democracy. As Justice Louis Brandeis observed, “Sunlight is said to be the best of disinfectants.” A weakened press cannot fulfill its role as a purveyor of sunlight.

Lessons from History: Protecting the Public’s Right to Know - The struggle to protect press freedom is not new. Historical cases like the Pentagon Papers (New York Times Co. v. United States, 1971) illustrate the vital importance of safeguarding the media’s ability to report on contentious matters, even when they challenge powerful interests. In that case, the Court prioritized the public’s right to know over the government’s attempt to suppress information, affirming the principle that transparency is essential to democracy.

Similarly, Bartnicki v. Vopper (2001) upheld the right of the press to publish truthful information of public concern, even when the source of the information involved questionable circumstances. This case underscores that reporting on controversial or sensitive issues is a protected activity that serves the public interest.

First Amendment Principles At Risk - The Smartmatic lawsuit against Fox Corporation is a pivotal test of the resilience of First Amendment protections. While media organizations must strive for accuracy and integrity, they must also be free to report on matters of public interest without undue fear of litigation. To weaken the protections of Sullivanand its progeny would imperil not only the press but also the public’s right to be informed.

This moment demands vigilance from all who value freedom of expression. Advocacy groups, legal scholars, policymakers, and citizens must reaffirm the principles that protect the free exchange of ideas recognizing that the outcome of this case will shape the contours of press freedom for generations to come.

A free press is not a partisan issue; it is a cornerstone of democracy. As Justice Hugo Black wrote, “The press was to serve the governed, not the governors.” It is here to safeguard democracy against the encroachments of fear and litigation.

Broader Implications - For broadcasters, publishers, and networks, the implications are immediate and profound. These institutions operate at the center of public dialogue, carrying the voices, debates, and

controversies that define our civic life. If the law shifts to make them guarantors of the absolute accuracy of every contested claim, the result will not be greater truth—it will be less speech. The First Amendment was not designed to produce a press that is cautious, timid, or compliant. It was designed to foster one that is bold, independent, and fearless in pursuit of the public’s right to know. The Smartmatic case, therefore, is not simply about Fox. It is about whether the media as a whole will retain the latitude to cover matters of public importance, or whether litigation risk will silence the very institutions entrusted to keep democracy informed. At stake is nothing less than the future of press freedom. If The First Amendment Matters—and it surely does—then its protections must remain robust, resilient, and undiminished in the face of political controversy and litigation pressure.

(c) 2025. American Capitol Media

 By Adonis Hoffman, Esq.

Direct to consumer (DTC) pharmaceutical advertising sits at the crossroads of medicine, markets, and the First Amendment. It informs patients, funds newsrooms, and, when done right, improves conversations in the exam room. Yet it also invites scrutiny. On September 9, 2025, the Administration announced an enforcement surge against allegedly misleading drug promotions, directing FDA to issue roughly a hundred cease and desist notices and thousands of warning letters and to revisit the 1997 “adequate provision” framework that allowed broadcast ads to summarize major risks and refer consumers elsewhere for full prescribing information. The move also targets social media promotions and online pharmacies. The question now is not whether government may police deception, it must, but whether a new regime of compelled disclosures and length requirements will cross the line from preventing deception to suppressing protected, truthful commercial speech. [1]

For broadcasters and networks, the stakes are material as well as doctrinal. Pharmaceutical advertisers spent more than ten billion dollars last year, with national television carrying a large share of that total. Any abrupt constraints on formats or inventory would reverberate through news and sports programming that depend on these budgets. Courts will not decide the controversy on revenue effects, of course, but they will weigh whether the asserted health interests are advanced by regulations “no more extensive than necessary.” Central Hudson still governs. [2]

Modern commercial speech protection begins with Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), recognizing that consumer access to truthful price information serves both personal and public interests. The Court later articulated its canonical four part test in Central Hudson (1980): (1) the speech must concern lawful activity and not be misleading; (2) the government interest must be substantial; (3) the regulation must directly advance that interest; and (4) it must not be more extensive than necessary. That framework, refined in cases like Rubin v. Coors Brewing (1995), 44 Liquormart (1996), Lorillard Tobacco v. Reilly (2001), and Thompson v. Western States Medical Center (2002), consistently treats broad bans and paternalistic burdens with skepticism. [3]

Two corollaries matter here. First, compelled factual disclosures can be permissible under Zauderer (1985) where they are “purely factual and uncontroversial,” reasonably related to preventing deception, and not unduly burdensome. Second, content and speaker based burdens on truthful promotion may trigger heightened scrutiny, as the Court signaled in Sorrell v. IMS Health (2011). Any updated FDA rules must therefore thread a narrow needle: tailored, factual, and not so onerous in broadcast practice that they amount to suppression. [4]

No one doubts that FDA may halt false or misleading drug ads. That authority is as old as the Food, Drug, and Cosmetic Act. The current initiative, however, goes further, seeking to close the 1997 adequate provision pathway, expand in ad risk narration, and police influencer and telehealth promotions with far greater vigor. The articulated interests, consumer protection, fair balance, transparency, are substantial. Whether the new measures directly advance those interests without overreaching is the constitutional crux. If, for example, broadcast standards require so much narration that ads become impracticable or commercially nonviable, the regime risks failing Central Hudson’s tailoring prongs. Courts have repeatedly rejected restrictions that rely on “mere speculation or conjecture” or burden far more speech than necessary. [5]

Moreover, categorical hostility to a class of lawful advertising raises familiar red flags. 44 Liquormart condemned bans rooted in paternalism. Western States invalidated federal limits on advertising compounded drugs, suggesting the government should pursue less restrictive alternatives, such as better disclosure and targeted enforcement, rather than speech suppression. Those lessons caution against transforming disclosure into deterrence. [6]

DTC ads do more than sell pills. Properly regulated, they deliver clinically relevant information that prompts informed questions and earlier diagnoses, particularly for under recognized conditions. Virginia Pharmacy emphasized the listener’s right to receive information; in the health context, the stakes are literally life and death. Curtailing truthful, balanced ads because they may spur demand substitutes governmental judgment for patient physician dialogue, exactly the paternalism 44 Liquormart and Sorrell warn against. [7]

Further, DTC is part of the economic engine underwriting news and public affairs programming. In 2024, drug advertising exceeded ten billion dollars across media. Television alone accounted for several billion, with national news and sports as key beneficiaries. Weakening that revenue pillar constrains the journalism the public expects to scrutinize health policy, pricing, and safety. While economics do not decide constitutionality, the First Amendment’s structural role, to sustain an informed citizenry, counsels caution before erecting rules that chill a major category of truthful speech and diminish the platforms that carry our civic conversation. [8]

If the government seeks cleaner DTC practices, the constitutional path is narrow but navigable.

Target deception, not discussion. Pursue ads that omit material risk or make unsubstantiated claims using existing misbranding tools, while avoiding blanket presumptions against classes of ads or speakers. That approach hews to Central Hudson’s demand for evidence based tailoring. [9]
 

Use Zauderer style disclosures sparingly. Require concise, purely factual risk statements demonstrably tied to consumer understanding, validated by testing, rather than sprawling scripts that consume entire spots. Disclosures that drown out the message risk becoming burdens themselves. [10]
 

Police digital gray zones with parity and clarity. Influencer, telehealth, and online pharmacy promotions should meet the same fair balance standards as broadcast, no more and no less, with clear guidance and objective examples. Ambiguity fosters over compliance and chills lawful speech. [11]
 

Prefer transparency to suppression. Where policymakers fear misinformation, counter speech, corrective notices, and prominent links to FDA authored summaries are less restrictive alternatives with a strong First Amendment pedigree. Western States and Rubin both faulted blunt instruments when precise tools were available. [12]
 

The First Amendment does not immunize deception. But it does resist paternalism that keeps the public “in the dark for what the government perceives to be their own good.” In the DTC context, the jurisprudence from Virginia Pharmacy through Sorrell points to a simple maxim: protect truthful, balanced advertising; punish the misleading; and tailor remedies to fit demonstrable harms. Anything more risks chilling speech that helps patients ask better questions, anchors the economics of trusted news, and ultimately serves the public health by empowering informed choice.

The law should aim its lance at falsehood, not at the forum. That is the First Amendment’s bargain with commercial speech, and it has served both liberty and health remarkably well.

1. FDA News Release, “FDA Launches Crackdown on Deceptive Drug Advertising,” Sept. 9, 2025 (enforcement letters; revisiting 1997 “adequate provision”; digital scope). U.S. Food and Drug Administration
    
2. White House, Presidential Memorandum, “Addressing Misleading Direct-to-Consumer Prescription Drug Advertisements,” Sept. 9, 2025; White House Fact Sheet (directives to HHS/FDA for transparency and accuracy). The White House+1
    
3. Reuters, “US FDA to step up enforcement of pharma ads, sends enforcement letters,” Sept. 9, 2025 (volume of letters; rationale; influencer/online pharmacy focus). Reuters+1
    
4. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). Oyez
    
5. Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). Justia Law+1
    
6. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (compelled factual disclosures standard). Library of Congress Tile  +1
    
7. Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (speculation insufficient; tailoring demanded). FindLaw Case Law
    
8. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (paternalism and broad bans disfavored). Justia Law
    
9. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (overbreadth in advertising restrictions). Legal Information Institute
    
10. Thompson v. Western States Medical Center, 535 U.S. 357 (2002) (less-restrictive alternatives; ban on compounding ads invalidated). Legal Information Institute
     
11. Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (heightened scrutiny for content/speaker-based burdens). Justia Law
     
12. Wall Street Journal, “Trump’s Crackdown on Drug Ads Could Sting TV Networks,” Sept. 2025 (spend levels; broadcast exposure; likely industry effects). Wall Street Journal
     
13. Barron’s, “Prescription Drug Ads Face Big Changes. These Stocks Could Get Hurt the Most,” Sept. 2025 (network ad reliance; news/sports share). Barron's
     
14. Time, “Trump Cracks Down on Drug Ads on TV, Social Media,” Sept. 2025 (MediaRadar estimate of 2024 spend). TIME
     
15. eMarketer / iSpot.tv, “Pharma spent almost $3B on TV advertising in the first six months,” July 15, 2025 (1H25 national TV spend, YoY). EMARKETER

(c) 2025. American Capitol Media