Lawsuit Against Fox Is Shaping Up to Be a Major First Amendment Case

Weeks after President Donald J. Trump lost the 2020 election, Fox Business host Lou Dobbs claimed there was “tremendous evidence” that voter fraud was to blame. The evidence never surfaced, but a new culprit in a supposed plot to rig elections emerged: Dominion Voting Systems, the maker of election technology whose algorithms were “designed to be inaccurate.” is.

Another host on the network, Maria Bartiromo, erroneously stated that “Nancy Pelosi has an interest in this company.” Fox News personality Jeanine Pirro speculated that a “technical glitch” in Dominion’s software “may have affected thousands of absentee mail-in ballots.”

These baseless accusations are now among dozens of accusations cited in Dominion’s defamation lawsuit The Fox Corporation alleges that it repeatedly aired false, outrageous, and exaggerated claims about the Dominion and its role in plotting to steal votes from Mr. Trump.

These bogus claims, including claims that the Dominion is a cover for Venezuela’s communist government and that its voting machines can switch votes from one candidate to another, have been at the center of the defamation lawsuits. , is one of the most extraordinary claims. It has been filed against American media companies for generations.

First Amendment scholars say the case is unusual in defamation law. A defamation claim typically contains a single statement of objection. However, Dominion’s complaint is replete with examples of false statements, many of which were made after the facts became widely known. And cases like this are often quickly dismissed because of the First Amendment’s broad free speech protections and the strong attorneys available to big media companies like Fox. If they move forward, they usually settle out of court, sparing both sides the spectacle of a costly trial.

But Dominion’s $1.6 billion lawsuit against Fox has been progressing steadily in Delaware state court this summer, and it’s getting a little closer to trial. There was no movement towards reconciliation by either side. Both companies are deeply committed to finding documents, going through each other’s emails and texting his messages over the years and taking depositions.

These people said they expect Rupert and Lachlan Murdoch, who own and control Fox Corporation, to participate in the deposition as early as this month.

The incident threatens to deal a heavy economic and reputational blow to Fox, by far the most powerful conservative media company in the country. But legal scholars say it could also bring strong sentences against pervasive and pernicious lies, and those who spread them, that undermine the country’s confidence in democracy.

“We are, in a way, suing history. What is historical truth?” Lee Levine, a prominent First Amendment attorney who has defended several major media defamation cases. Mr. “Here we are going through a process that could take very recent current events and finally declare what the correct version of history is.”

The incident has caused obvious anxiety for Fox News Channel, several people who spoke only on condition of anonymity said. to turn over months of private emails and text messages to Dominion to prove that the network’s employees knew the bold accusations of voter fraud were false. I am forced. Hosts Steve Doocy, Dana Perino and Shepard Smith are among the current and former Fox personalities who have been or will be fired this month.

Dominion is looking to build a case that goes straight for the top of the Fox media empire and the Murdochs. Dominion attorneys lay out plans in court filings and depositions to show senior Fox executives planned to bring back viewers who switched to rival far-right networks after the election. explained how to Claims of Trump voter fraud.

Defamation law does not protect lying. However, there is still room for the media to feature newsworthy figures. And Fox claims that’s part of the reason he’s not held accountable. Asked about Dominion’s strategy to put the Murdochs front and center in the case, a Fox spokesperson said it would be a “fruitless fishing expedition.” A Fox News spokesperson said it was “ridiculous” to claim the network was chasing viewers off the far-right fringe, as Dominion did in its lawsuit.

Fox challenges Dominion’s estimated self-assessment of $1 billion, making $1.6 billion too high for damages, as was the case in a similar defamation lawsuit filed by another voting machine company, Smartmatic. I will argue that it is.

A spokeswoman for Dominion declined to comment. In the initial complaint, the company’s lawyers wrote that “truth matters” and added that “lies have consequences.”

For Dominion to convince jurors that Fox was responsible for defamation and should pay damages, it would have to clear a very high legal standard known as the “actual malice” standard. Dominion claims that people inside Fox knew that what the hosts and guests were saying about the election technology company was false, or that they effectively provided information proving that the statements in question were false. You must indicate that you ignored it. truth.

A judge recently ruled that Dominion meets its actual bad faith standard “at this stage,” expanding the scope of its lawsuit against Fox and the types of evidence it can seek from senior company executives. I was able to do.

In late June, Delaware Superior Court Judge Eric M. Davis denied Fox’s motion to exclude parent company Fox Corporation from the lawsuit. The business encompasses the most profitable portion of Murdoch American Media’s portfolio and is headed by Chairman Rupert Murdoch, 91, and his eldest son, Chief Executive Lachlan Lachlan. ) is operated directly by

Shortly thereafter, Fox replaced the case’s outside legal team, hiring one of the country’s most prominent trial attorneys.

Dominion’s attorneys have focused some of the questions in a deposition on Fox News’ decision-making hierarchy, and according to a person with direct knowledge of the case, the network took the lead hours after it was predicted. Trump has shown particular interest in what happened on election night within Trump will lose Arizona. The call circumvented the president’s plan to prematurely declare victory, infuriating him and his supporters and causing a temporary plummeting of Fox’s ratings.

According to this person, these questions had a singular focus. It was to have Lachlan Murdoch in the room while decisions were being made about election coverage. This person has so far testified that the young Murdoch has not tried to pressure anyone at Fox News to cancel the call, but Trump and his He added that he asked detailed questions about the process of Mr. Fox’s election, as a campaign aide requested to the network. Analysts were using after the phone became so controversial.

Citing the broad protections granted by the First Amendment, Fox’s legal team said statements about the Dominion machine by casters such as Dobbs and Bartiromo and guests such as Rudolph W. Giuliani and Sidney Powell: It claims to be a protected opinion or type of speech. Any media organization would unquestionably pick it up as newsworthy.

“When the president and his lawyers are arguing, it’s newsworthy in itself,” said Dan Webb, a barrister Fox brought in a few weeks ago, in an interview. “I don’t think the jury will accept it to say it shouldn’t be in the press. And I think that’s what plaintiffs are saying here.”

Webb’s recent major media defamation case represented a different side. A South Dakota meat producer has filed a lawsuit against ABC for a report on the safety of low-cost processed beef trimmings, often referred to as “pink slime.” The case was settled in 2017.

But Fox is also looking for evidence that can virtually prove that the Dominion conspiracy theory isn’t actually a conspiracy theory. We have pursued documents that support numerous unsubstantiated claims about Dominion, including relationships and software features ostensibly designed to facilitate voting manipulation.

According to court filings, words and phrases Fox asked Dominion to search for internal communications more than a decade old included “Chavez,” “Hugo,” “defaced,” “backdoor,” “Stolen”, “Trump.”

Fox News and Fox Business provided platforms for some of the most vocal purveyors of these theories, including MyPillow founder Mike Lindell and the president’s personal attorney Giuliani. Biden Jr. next president. In one interview, Giuliani falsely claimed that Dominion was owned by a Venezuelan company with close ties to Chavez and was set up “to fix elections.” (Dominion was founded in Canada in 2002 by a man who wanted to make it easier for blind people to vote.)

Dobbs, who gave one of the interviews cited in the Dominion complaint, gave Giuliani an encouraging reply, saying, “Four and a half years in the United States. Fox canceled Mr. Dobbs’ Fox Business Show last year. , has never retracted its comments about Dominion.

Dominion has also filed lawsuits against Giuliani, Powell and Lindell respectively.

In the complaint, Dominion says that in the weeks after the election, people began leaving violent voicemail messages in the office, threatening to execute everyone working there and blow up the headquarters. In one office someone threw a brick out the window. According to the complaint, the company had to spend hundreds of thousands of dollars on security and lost hundreds of millions more in business.

“The damage done to Dominion by Fox’s lies is unprecedented and irreversible because of how fervently millions of people believed the lies and continue to do so. ‘, the complaint reads.

The company sought to link these falsehoods to the January 6 siege of the Capitol. “These lies didn’t just hurt Dominion,” the company said in its complaint. “They hurt democracy. They hurt the idea of ​​credible elections.”

As part of that case, it cites one of the most enduring images from the January 6 attacks. It’s a man holding a zip tie in his left hand in the Capitol on January 6, 2021. Also on the suit was a second photo of him as a man, later identified as: Eric Manchell A picture of Tennessee brandishing a shotgun with Trump on TV in the background. The TV is tuned to Fox Business.

But the hurdle Dominion must clear is whether they can convince jurors that they knew the people at Fox were spreading lies.

“Spreading the ‘big lie’ is not enough,” says Ronnell Andersen Jones, a law professor and First Amendment scholar at the University of Utah’s SJ Queenie School of Law. “It must be a knowing lie.”