Dominion and Smartmatic’s lawsuits might finally hold Fox accountable for promoting 2020 election lies.
Though Fox News was the first network to make the tipping-point call that Joe Biden won Arizona on election night 2020, hosts of the network’s opinion shows subsequently promoted a number of former President Donald Trump’s baseless allegations that the election had been rigged against him.
Sean Hannity, for instance, incorrectly asserted that “nobody can testify to the legitimacy” of the vote tally in Pennsylvania, called for an election “do-over,” and proposed that Republican legislators in the state overturn the results. Hosts also uncritically elevated voices, including former Trump lawyers Sidney Powell and Rudy Giuliani, who falsely identified two companies that provide voting software and hardware as the culprits behind Trump’s loss.
Those companies, Dominion Voting Systems and Smartmatic, are now suing Fox News in a pair of cases that pose severe financial risks to the network.
Dominion is seeking $1.6 billion in damages and additional punitive damages, claiming Fox News knowingly promoted lies that it helped rig the election against Trump. The case is slated to go to a five-week trial on April 17 in a Delaware court. It’s still possible, if unlikely, that the companies reach a settlement before then. Smartmatic is demanding even more in its separate defamation suit, which is soon scheduled to move forward.
The most-watched network in cable news could have the resources to survive an adverse judgment. But the suit has already produced some severe reputational blows: Private text messages and emails released during the case show that on-air personalities, producers, and executives — including Fox chair Rupert Murdoch and host Tucker Carlson — did not believe the 2020 election was stolen, even as some at Fox News were uncritically promoting the conspiracy theories.
Defamation suits against media outlets are extremely difficult to win. But while the First Amendment and the landmark New York Times v. Sullivan Supreme Court ruling reinforcing it give Fox broad leeway to broadcast its views, they do not give media outlets a limitless right to spread lies, and Fox’s actions may be so egregious that they are not protected.
In a statement, Fox News, in a statement to Vox that aligns with its legal strategy, said Dominion had “twist[ed] and even misattribute[d] quotes to the highest levels of our company” as part a “campaign to smear” the network, and it warned the suit could have “grave consequences for journalism across this country.”
Others see a clear violation in how Fox handled the allegations. “The conduct here is way over the line,” said Angelo Carusone, president of the watchdog organization Media Matters for America. “It’s extraordinary for a person in [Murdoch’s] position to be so actively steering news coverage around anything, let alone a specific story that they know is not true.”
Here’s what you need to know about the allegations against Fox, and what the case might mean for the network’s — and the media’s — future.
Why Dominion and Smartmatic are suing Fox
Dominion produces elections technology — including voting machines, software for election databases and audits, and devices to scan and print ballots — that was used in 28 states in 2020. It became a target of Trump loyalists who were spreading false conspiracy theories about mass voter fraud involving dead people and double-counted votes, voting machines that had been hacked to add to Biden’s vote count, and poll workers who had committed various election crimes, such as sneaking in “suitcases” of fake ballots to be counted.
Sidney Powell, then a lawyer working with Trump’s campaign, accused Dominion of “flipping votes in the computer system or adding votes that did not exist” and a “huge criminal conspiracy that should be investigated by military intelligence” on Maria Bartiromo and Jeanine Pirro’s shows. Hannity also had Powell on, boosting her conspiracy theories by saying that “nobody likes Dominion’’ and questioning why the US would “use a system that everybody agreed sucked or had problems.” And Giuliani claimed on Lou Dobbs’s show that Dominion and Smartmatic were companies “formed in order to fix elections” by associates of the Venezuelan dictator Hugo Chávez.
Al Drago/Bloomberg/Getty Images
Officials have found no evidence that vulnerabilities in Dominion voting machines were exploited. And neither Dominion nor Smartmatic has links to Venezuela or the Chávez family.
Dominion filed suit in March 2021, alleging that it lost at least 20 contracts and potential opportunities with 39 more jurisdictions following the 2020 election due to Fox’s coverage. It claimed that the damage to its business included $88 million in lost profits, $600 million in future profits, and a $921 million hit to its valuation.
What Rupert Murdoch, Tucker Carlson, and other Fox figures were saying
Dominion’s complaint argues the network knowingly advanced the lie that Dominion had “committed election fraud by rigging the 2020 Presidential Election.” As part of the litigation, Dominion obtained troves of documents detailing how Murdoch and Fox News hosts privately rejected those conspiracy theories over text, email, and in testimony, but promoted them on the air anyway.
In internal emails, Murdoch called the election-rigging claims “really crazy” and “damaging,” but didn’t intervene to stop the network from pushing them. Host Tucker Carlson texted a producer that “there wasn’t enough fraud to change the outcome” of the election and that Powell was “lying.” Anchor Dana Perino called the conspiracy theories about Dominion “total bs,” “insane,” and “nonsense.” In a deposition, Hannity admitted that he did not believe Powell’s claims “for one second.”
Nevertheless, Fox executives and hosts knew baseless claims of election fraud were what their viewers wanted to hear about and took aim at their own journalists. Murdoch said, “I hate our Decision Desk people!” after the network called Arizona for Trump before any of its competitors, drawing the immediate ire of Trump. Host Laura Ingraham and Carlson blamed the news division, which was generally more skeptical of those touting false election claims than the opinion hosts, for declining ratings. “You don’t piss off the base,” Hannity texted host Steve Doocy after claiming that the news division had “destroyed us.”
Smartmatic’s even bigger $2.7 billion lawsuit, which was filed in February 2021, cites many of the same statements as evidence that Fox made the company a “villain” in its false story about how the 2020 election was stolen from Trump. In addition to naming Fox and its parent company as defendants, the lawsuit also names Giuliani and Fox hosts Lou Dobbs and Maria Bartiromo individually and is seeking punitive damages, which could lead to an even bigger judgment against Fox than in the Dominion case.
Fox News contends that the amount of damages sought unsupported by Smartmatic’s financial performance, and in its statement to Vox called the claim “a naked attempt to grab the kind of attention that will magnify the very chilling effect on free speech and free press rights that Smartmatic’s lawsuit represents.”
The New York Supreme Court nevertheless allowed that suit to go forward in February.
Can Dominion win its lawsuit against Fox News?
It is notoriously difficult to win a defamation lawsuit, especially when the plaintiff is a public figure and the case involves matters of public concern, given the protections the press was afforded by the First Amendment and reinforced by the 1964 Supreme Court decision in New York Times v. Sullivan. Fox is arguing that a judgment against the company would erode those protections.
Under the Supreme Court’s decision in Sullivan, Dominion can only prevail if it can show that Fox made false claims about Dominion “with knowledge that it was false or with reckless disregard of whether it was false or not.” This knowledge-or-reckless-disregard requirement is what lawyers refer to as “actual malice.”
The actual malice rule exists for very good reason. Sullivan reached the Supreme Court after Alabama’s courts ordered the New York Times to pay an outrageously high defamation award because the Times published a full-page advertisement written by civil rights activists who opposed Alabama’s Jim Crow regime. The ad contained some minor factual errors (such as overstating the number of times Dr. Martin Luther King Jr. had been arrested for his activism), and Alabama’s courts latched onto these small errors to justify ruling against the Times.
Sullivan prevents these kinds of attacks on the First Amendment from happening again (although it is worth noting that several high-profile Republicans, including Florida Gov. Ron DeSantis, are actively working to dismantle these free speech protections). But one consequence of Sullivan is that outlets like Fox, some of whose programs may have a dubious relationship with the truth, will sometimes get away with spreading falsehoods.
Nevertheless, Fox may not get away with its allegations against Dominion because the voting machine company produced substantial evidence suggesting that key figures within Fox, including its most senior leaders and its most visible personalities, knew that the network was spreading falsehoods. After a November 8 segment where Trump lawyer Sidney Powell falsely accused Dominion’s voting machine software of changing votes, for example, Fox host Tucker Carlson privately texted that “the software shit is absurd.”
More importantly, Dominion’s evidence also suggests that at least some of the specific Fox employers who touted or broadcast falsehoods about Dominion recklessly disregarded information showing that these claims were false.
Consider, for example, the November 8 segment with Powell and Fox host Maria Bartiromo. According to Dominion’s brief, both Bartiromo and her producer, Abby Grossberg, “knew what Powell would say on air on November 8” and were familiar with Powell’s sourcing for her claims. Knowing what they knew, Dominion has a strong case that Sullivan does not protect this particular Fox News segment.
Prior to the interview, the brief claims, Powell sent Bartiromo an email laying out the basis for her allegations. In that email, Powell claimed to have learned from a source who knew that Dominion’s software changed votes.
But, as recounted in Powell’s email to Bartiromo, the source made several claims that were obviously ridiculous. Among other things, she claimed that Justice Antonin Scalia “was killed in a ‘human hunting expedition.’” Powell’s source also stated that she experiences something “like time-travel in a semi-conscious state,” that enables her to “see what others don’t see, and hear what others don’t hear” and that she “received messages from ‘the wind.’”
According to Dominion’s brief, Bartiromo forwarded this email to Grossberg. And Bartiromo wrote back to Powell that the email had “very imp[ortant] info.”
A court could quite reasonably conclude, in other words, that Bartiromo and Grossberg behaved recklessly when they decided to air an interview with Powell, despite knowing that Powell got her information from a source who claimed to talk to the wind.
Dominion’s brief identifies multiple statements, made on multiple Fox shows over the course of more than a month, that it alleges are defamatory. The judge hearing the Dominion case, and potentially a jury, will need to look at each of these statements and determine whether the Fox employees who were responsible for these statements being made on air acted either with knowledge that they were false or with reckless disregard for the truth.
To prevail in its lawsuit, Dominion only needs to show that one of these statements overcomes the high hurdle that Sullivan places before them. That said, if the courts determine that only one or a few of these statements amount to actionable defamation, Dominion could collect less money from Fox than if it convinces the courts that all of the challenged statements were unlawful.
How Fox is defending itself
In addition to arguing that it is protected by Sullivan, Fox News also raises a separate defense. Essentially, Fox argues that it did not actually assert that the false allegations about Dominion are true. It was merely reporting on the fact that the sitting president and his lawyers made this allegation against Dominion, and journalists are allowed to report on such newsworthy allegations. A spokesperson for Fox News also told Vox that the network “invited Dominion on air numerous times” to present its case, and that reporting on “both the allegations and the denials is critical to the truth-seeking function.”
It is certainly true that news outlets must be allowed to report on the mere existence of certain false allegations, even if the outlet believes those allegations to be false. As Fox rather colorfully argues in its brief, “if the President falsely accused the Vice President of plotting to assassinate him,” a newsroom is not required to ignore that “unquestionably newsworthy allegation” just because people within the newsroom believe that it is untrue.
But newsrooms do not have an unlimited right to report false allegations uncritically. Rather, as New York’s highest court held in Brian v. Richardson (1995), a news report that repeats false allegations is not unlawful, so long as the report “made it sufficiently apparent to the reasonable reader that its contents represented the opinion of the author and that its specific charges about [a] plaintiff were allegations and not demonstrable fact.” Fox relies heavily on this Brian decision in its briefing.
It is far from clear that Fox “made it sufficiently apparent to the reasonable [viewer]” that all the allegations it covered were just that, and not facts. In other words, Brian might not save Fox from liability for at least some of the allegedly defamatory statements that it chose to broadcast.
Al Drago/Bloomberg/Getty Images
Bear in mind, as well, that Dominion points to multiple statements made on Fox News, which it claims are defamatory. Much as the courts will need to evaluate each of these statements to determine whether they are protected by the First Amendment rule announced in Sullivan, they will also need to go through each of the challenged Fox News segments to determine what a reasonable viewer would take away from them. It is entirely possible that the courts could conclude that some, or all, of these statements are not actionable under Brian.
But, while Dominion must overcome an array of legal hurdles that ordinarily make it very difficult for defamation plaintiffs to prevail, it has presented enough evidence that Fox behaved irresponsibly that Fox is in real danger of losing this lawsuit.
What we’ve learned about Fox, and what the consequences could be
The documents surfaced in this lawsuit’s discovery process provide a remarkably illuminating glimpse into how Fox News operates.
First, they confirm that Fox News is not simply a business or a news reporting operation — that, instead, it is operated with explicit political goals in mind, often dictated from the Murdoch family downward. After the 2020 election, for instance, Murdoch said in an email to Fox News CEO Suzanne Scott that he wanted Fox News to “concentrate on Georgia helping any way we can,” referencing the two Senate runoff contests that would determine control of the chamber.
And after the January 6 attack, Murdoch wrote: “Fox News very busy pivoting. ... We want to make Trump a non person.”
Yet the documents also reveal that in many ways, Fox is captive to its hardcore pro-Trump conservative viewers, rather than the other way around. This dynamic was demonstrated most dramatically in the two months after the 2020 election, when Trump spread false claims of election fraud that the documents reveal were widely disbelieved by Fox executives, producers, and most top talent but believed by Fox viewers.
When certain Fox reporters would debunk Trump’s claims too aggressively, opinion hosts complained and executives flagged it as a “Brand threat,” arguing this risked losing their viewers’ trust and permanently driving them away.
“The audience feels like we crapped on [them] and we have damaged their trust and belief in us,” Scott wrote in an email in mid-November 2020. “We can fix this but we cannot smirk at our viewers any longer.”
And Carlson admitted in January 4, 2021, texts that he couldn’t wait until he was “able to ignore Trump most nights,” adding, “I hate him passionately,” and calling his rise a “disaster.” Yet his shows hardly revealed those sentiments.
Rich Graessle/Icon Sportswire/Getty Images
Fox News still very much tries to influence its viewers’ opinions — the network usually just does it in a more subtle way. Fox attempts to steer, redirect, and shape their rage without ever taking too heavy a hand. For instance, rather than harshly criticizing Trump in 2021 and 2022, the network often just ignored him, while devoting positive coverage to a potential Trump alternative in the party: Florida’s Gov. DeSantis.
This tension — between the political goals of Fox power players and their fear of alienating their audience — could be tremendously important to the 2024 presidential primary. Fox’s leaders are privately hostile to Trump, but they seem to feel constrained from covering him too negatively due to viewer backlash. Will they be able to subtly steer their audience away from Trump? Will they even try?
Fox may have a lot of money on the line in this lawsuit, with Dominion requesting $1.6 billion in damages — though even if Fox loses the trial, the impact on its business will be far from clear. We don’t yet know exactly how big a penalty the jury and judge would approve, and an appeal on First Amendment grounds would be highly likely.
As for whether the confidence of Fox’s audience in the network will be shaken by these revelations, that seems more questionable. For one, Fox itself has been ignoring the topic.
But generally, Trump’s and his allies’ confidence in Tucker Carlson hasn’t been shaken by the revelations that he privately trashed them. They’ve focused instead on his public work — like his recent report pushing a revisionist history narrative that the January 6 attacks were overblown.
“GREAT JOB BY TUCKER CARLSON TONIGHT,” Trump wrote on March 7 on his social network Truth Social.
----------------------------------------
By: Nicole NareaIan MillhiserAndrew Prokop
Title: The multibillion-dollar defamation lawsuits against Fox News, explained
Sourced From: www.vox.com/politics/23644951/fox-news-dominion-lawsuit-smartmatic-defamation
Published Date: Mon, 20 Mar 2023 12:00:00 +0000
