Fox News and its parent company face serious threats to their financial and reputational health from a blockbuster defamation lawsuit tied to coverage of the 2020 election that legal experts believe has a solid chance of succeeding.
Dominion Voting Systems, which brought the $1.6 billion suit, is a voting technology provider that argues Fox News defamed it by knowingly repeating falsehoods from former President Trump and his aides and allies that Dominion’s services were used to fraudulently elect Joe Biden to the White House.
A slew of internal communications and depositions taken by Dominion as part of its discovery process has left many legal experts warning that Fox could be on shaky legal footing.
Dominion argues the vignettes contained in its court filings demonstrate how top hosts and executives at Fox knew the claims being pushed by Trump’s associates about Dominion were false but aired them anyway.
“One just doesn’t see cases like this in defamation,” said Catherine Ross, a constitutional law professor at George Washington University who specializes in First Amendment issues.
“Fox does not appear to have any plausible defense, particularly in light of what Dominion uncovered in discovery of real-time knowledge of falsity,” she said.
Dominion has deposed top talent at Fox and senior executives, including Rupert Murdoch, the owner and co-chairman of Fox Corp.
Depositions and texts show many hosts and executives had severe doubts about the claims made by Trump, but that they were also worried about how their audience would react to fact checks of those claims.
“Sidney Powell is lying by the way. I caught her. It’s insane,” Tucker Carlson wrote to fellow prime-time host Laura Ingraham on Nov. 18, according to a recent court filing.
Powell was an attorney and former aide to Trump following the 2020 election who was promoting conspiracy theories about Dominion, including wild claims that the company had used software “at the direction” of former Venezuelan President Hugo Chavez to swing the election against Trump.
According to the filing, after Murdoch watched Powell and Rudy Giuliani make false claims of electoral fraud during a press conference on Nov. 19, 2020, he told Fox News Media CEO Suzanne Scott: “Terrible stuff damaging everybody, I fear,” according to the filing.
Weeks later, Murdoch wrote to Scott saying “it’s been suggested our prime time three should independently or together say something like ‘the election is over and Joe Biden won,’” and that such a statement “would go a long way to stop the Trump myth that the election stolen.”
Fox lawyers say Dominion has yet to sufficiently demonstrate it defamed the company and clear a threshold many plaintiffs suing leading media companies for large sums of money have had limited success doing in recent years.
It argues it had a journalistic duty to cover the claims made by Trump and his allies, and separately accuses Dominion of “cherry-picking” quotes and strategically rolling out portions of what it obtained in discovery in order to drum up press coverage as it builds its case.
“Dominion’s lawsuit has always been more about what will generate headlines than what can withstand legal and factual scrutiny, as illustrated by them now being forced to slash their fanciful damages demand by more than half a billion dollars after their own expert debunked its implausible claims,” the network said in a statement this week.
“Their summary judgment motion took an extreme, unsupported view of defamation law that would prevent journalists from basic reporting and their efforts to publicly smear Fox for covering and commenting on allegations by a sitting President of the United States should be recognized for what it is: a blatant violation of the First Amendment,” it said.
An attorney for Fox told The Hill this week the outlet is confident it will prevail in the case, arguing Dominion’s suit could have a chilling effect on other news organizations.
Outside observers say the internal communications revealed through the discovery process, however, are a real problem for Fox.
“You can cover this without giving a platform to people like Sidney Powell because when you invite her on her show, you’re responsible for her lies if you don’t correct them in real time,” Ross, the legal expert, said. “There are many, many ways of framing and covering that do not involve actually giving a platform or labeling something as actual news or a fact.”
Neither Dominion nor Fox have signaled any public interest in a settlement. That’s unusual given the nature of the case.
“Most of these kinds of cases ultimately settle, mainly because the media defendants don’t want to take the risk in the bad publicity,” said Carl Tobais, the chair in the law at the University of Richmond.
“And the plaintiffs may be afraid they won’t win anything just because of the really high standard that the Supreme Court set in the New York Times v. Sullivan decision,” Tobais said. “It does seem in this particular case that Dominion may be making a pretty strong argument, so it’ll be interesting to see how it plays out.”
Times v. Sullivan was a landmark Supreme Court decision in 1964 that reversed libel judgement against the Times after it ran a full-page civil rights fundraising ad protesting the treatment of Martin Luther King Jr. by police. The decision has been cited in a number of cases by media companies looking for protection from claims of libel and defamation.
Fox’s lawyers this week declined to comment on any potential settlement in the case, as did a representative for Dominion.
Some of the headlines generated by Dominion’s recent filing may be embarrassing for the company, but do not meet the legal standard for defamation, Fox’s lawyers argue.
Among the explosive revelations made in the recent filings was a never-before-published acknowledgement from Murdoch that some of his hosts endorsed Trump’s election lies because they were, as he allegedly wrote of Sean Hannity in particular, “scared to lose viewers,” according to the filing.
Lee Levine, a private First Amendment attorney who has represented a number of major media companies, in an appearance on CNN this week said the remarks are newsworthy, but do not necessarily cement Dominion’s case.
“From a legal perspective, it is certainly helpful to Dominion’s case, but it is not a smoking gun,” he said.
One thing most media and legal observers agree on is that the case is shining a spotlight on how the world’s largest news organizations cover dubious claims being promoted by prominent people and how failure to vet them can lead to drastic consequences.
“When you know that something is false or … if you are reckless in taking the steps to make sure that it is true and accurate then you may be held accountable,” said Joseph Russomanno, a journalism professor and expert in the First Amendment and media law at Arizona State University’s Walter Cronkite School. “What it will do is drive home that point that being careless or frivolous about facts and the truth will not stand.”
–Updated at 10:22 a.m.