At this point, it’s safe to say that Dominion Voting Systems has a good chance of prevailing in its $1.6 billion defamation case against Fox News. Documents filed in the case reveal that Fox News executives and on-air figures privately doubted the election fraud claims of President Donald Trump and his sort-of lawyers, Rudy Giuliani and Sidney Powell, even while they were boosting election conspiracy theories in their programming on a daily basis. This is the sort of evidence lawyers drool over. But the voting machine company must still fight an uphill battle.

The Supreme Court established decades ago in New York Times v. Sullivan that the First Amendment provides robust protections for news publishers to be wrong about factual matters and to report on people who are wrong about factual matters. To win its case, then, Dominion must show not only that Fox News published false statements about Dominion that tended to injure it, but also that Fox acted with “actual malice.” The term the Supreme Court chose, “actual malice,” is a bit misleading. Actual malice doesn’t mean, in this context, that Dominion must show that Fox had ill will. “Actual malice” means that Dominion must show that Fox published the false and defamatory statements with knowledge of or reckless disregard for their falsity.