Defamation Case Against Fox News Proceeds Toward Trial
In the days and weeks that followed the 2020 presidential election, conservative news organizations, including Fox News, repeatedly aired claims that the election results were fraudulent. Several conservative and far-right networks, including Fox News and One America News Network (OANN), gave significant airtime to numerous supporters of then-President Donald Trump, who spun elaborate conspiracy theories claiming that electronic voting machines manufactured by Dominion Voting Systems had been programmed to rig the vote count in favor of Democratic candidate Joe Biden.
Those claims were systematically proven false in court proceedings and hand recounts of the election results in multiple U.S. states. But Dominion was condemned by members of the public and politicians who believed what they heard on Fox News. One Dominion executive was forced into hiding after receiving death threats.
In response, Dominion pursued several defamation lawsuits targeting high-profile Trump supporters who had pushed the false claims of election fraud in national media. Among those sued were Rudy Giuliani, a former mayor of New York and a onetime personal attorney to Trump; Mike Lindell, CEO of My Pillow; attorney Sidney Powell; and Overstock.com CEO Patrick Byrne.
Dominion also sued OANN and far-right cable news network Newsmax.
Internal Fox communications
While some news organizations responded to Dominion's lawsuits by retracting their stories, Fox News and Fox Corp. elected to fight.
As part of the lawsuit, Dominion demanded and received access to the internal communications of Fox executives. A wide range of text messages and emails from senior Fox executives and well-known on-air personalities that have been made public strongly suggest they knew the claims about Dominion were likely false, but continued to spread them anyway.
In one representative exchange from November 2020, Tucker Carlson, the network's highest-rated host, wrote to fellow anchor Laura Ingraham, "Sidney Powell is lying by the way. I caught her. It's insane."
Ingraham responded. "Sidney is a complete nut. No one will work with her. Ditto with Rudy."
Other Fox employees connected to its various programs also expressed their belief in text and emails that the claims raised by Powell, Giuliani and others were false or unsupported by evidence. Hosts of popular Fox prime-time programs criticized on-air Fox journalists who reported that the claims against Dominion were false.
A number of emails from the network's senior executives suggest they were concerned that if they stopped broadcasting claims of election fraud, or actively debunked the ones being made by their on-air guests, they would lose audience share to outlets that pushed the false claims.
Libel law
Experts say the Dominion lawsuit against Fox News is remarkable in several ways, most notably that it is going to trial at all given the strong press protections guaranteed by the First Amendment to the U.S. Constitution.
"These major defamation cases against major media companies are almost never brought in the United States, because the constitutional standard is so strict, and the hurdle that has to be cleared is so high," RonNell Andersen Jones, a professor of law at the University of Utah, told VOA.
In the U.S., public figures who sue for defamation must prove that the news organization who published the false information acted with "actual malice."
"It's a state-of-mind standard that climbs inside the head of the people who were responsible for the creation of the broadcast and requires the demonstration that they had subjective awareness of the probable falsity of what they said," said Andersen Jones, who is also an affiliated fellow with Yale Law School's Information Society Project.
"It's really, really hard to do," she added. "This is the rare case in which they have compiled this body of evidence from inside the organization, internally recognizing the falsity of the assertion, at the very time that these statements were being broadcast. And you just don't get that."
Senior management aware
The internal Fox communications, as well as depositions by senior executives, also bolster Dominion's case that claims about the company were broadly understood to be false within the Fox organization.
Former Republican Speaker of the House Paul Ryan, who is on the board of directors of Fox Corporation, testified that in the weeks following the election, he repeatedly told corporation CEO Lachlan Murdoch and Fox Corporation founder and chairman Rupert Murdoch that Fox News needed to "move on from Donald Trump and stop spouting election lies."
In a deposition, Rupert Murdoch appeared to acknowledge that top on-air personalities Maria Bartiromo, Lou Dobbs, Sean Hannity and Jeanine Pirro had gone beyond simply reporting on allegations about Dominion and had "endorsed" them.
"I would have liked us to be stronger in denouncing it in hindsight," Murdoch said.
Asked if he could have issued an order directing that programming at Fox News cease repeating falsehoods about Dominion, Murdoch said, "I could have. But I didn't."
The court documents that were released to the public are heavily redacted in some parts, apparently at the request of Fox. Often, the context surrounding the redactions suggests that the material blacked out is helpful to Dominion and harmful to the network. The New York Times, The Associated Press and National Public Radio have filed suit, demanding fuller access to the contents of the court filings.
Fox defense
In its defense, Fox has claimed that in mentioning the false allegations against Dominion, it was reporting on newsworthy events, particularly the statements of Trump, who frequently voiced the claims in the weeks following the election.
The "press has a right to cover and comment on newsworthy allegations of newsworthy figures," the network argued in a brief seeking to have the case dismissed.
Its attorneys focused on the instances in which Fox News hosts treated the allegations with caution or doubt.
"Far from reporting the allegations as true, hosts informed their audiences at every turn that the allegations were just allegations that would need to be proven in court in short order if they were going to impact the outcome of the election," the brief filed on the network's behalf said. "And to the extent some hosts commented on the allegations, that commentary is independently protected opinion."
Fox News has also attacked the Dominion complaint as incomplete and misleading.
"Dominion has mischaracterized the record, cherry-picked quotes stripped of key context and spilled considerable ink on facts that are irrelevant under black-letter principles of defamation law," the network said in a statement.
Ethical questions raised
Journalism experts said they were particularly troubled by the evidence presented in the case suggesting that senior executives at Fox News and on-air hosts appeared to argue that the network should avoid reporting facts about the election because doing so would lead to a decline in viewership.
"It certainly raises questions about how the value of an audience is driving this particular outlet's — and possibly other outlets' — editorial decision making," Kathleen Bartzen Culver, a professor and director of the Center for Journalism Ethics at the University of Wisconsin-Madison, told VOA.
"Some of these texts really think about the audience in a monetized way, and if that is influencing what we will cover, that is far afield from journalism in the public interest," she added.
Ethics aside, Culver said she was stunned at the openness with which Fox executives and personalities discussed their concerns about the veracity of their news coverage in emails and texts.
"No one at Fox News thinks that their communications would be discoverable?" she said. "I find that either wildly naive or wildly arrogant. I'm not sure which."
Ironic coincidence
There is considerable irony at play in the fact that Fox News, the dominant conservative news outlet in the U.S., is the target of a libel suit that experts say has a plausible path to success.
For years, prominent Republicans, most notably Trump, have railed against the severity of the actual malice standard, arguing that the bar it sets is so high that it effectively leaves people who are victims of inaccurate coverage with no recourse to the courts.
Many conservatives, who generally believe the mainstream media have a liberal bias and direct more negative coverage at them, have called for a relaxation of the standard that would make it easier to successfully sue media organizations. Two conservative justices on the U.S. Supreme Court — Clarence Thomas and Neil Gorsuch — have called on the court to revisit New York Times v. Sullivan, the 1964 case that established the standard.
Protection for actual malice
Kevin M. Lerner, chair of the Department of Communication at Marist College, told VOA that he has been surprised to see other news organizations lining up in support of Dominion, and believes it might be because many see the case as potentially drawing a red line between what the First Amendment allows and what it does not.
"In the past in defamation suits, most news organizations would support the news organization, even if it was a rival or someone they didn't agree with," he said. "It's a sort of, 'There but for the grace of God go we' kind of argument."
Now, Lerner said, "I think there may really be something different here, seeing that media organizations are saying, 'No, this is actually going to help protect the First Amendment, by saying you can't deliberately spread falsehoods. That's not what the First Amendment is for.'"
He said there appears to be some hope among news organizations that a successful high-profile defamation suit might cause activists to "back off" on efforts to loosen the actual malice standard.