[The suit, filed by Dominion Voting Systems, could be one of the
most consequential First Amendment cases in a generation.]
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DEFAMATION SUIT ABOUT ELECTION FALSEHOODS PUTS FOX ON ITS HEELS  
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Jeremy W. Peters
August 13, 2022
New York Times
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_ The suit, filed by Dominion Voting Systems, could be one of the
most consequential First Amendment cases in a generation. _

The Fox News studio in Manhattan on election night in 2020. A
defamation suit by Dominion Voting Systems threatens a huge financial
and reputational blow to Fox., Fox

 

In the weeks after President Donald J. Trump lost the 2020 election,
the Fox Business host Lou Dobbs claimed to have “tremendous
evidence” that voter fraud was to blame. That evidence never emerged
but a new culprit in a supposed scheme to rig the election did:
Dominion Voting Systems, a maker of election technology whose
algorithms, Mr. Dobbs said, “were designed to be inaccurate.”

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

Those unfounded accusations are now among the dozens cited in
Dominion’s defamation lawsuit
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the Fox Corporation, which alleges that Fox repeatedly aired false,
far-fetched and exaggerated allegations about Dominion and its
purported role in a plot to steal votes from Mr. Trump.

Those bogus assertions — made day after day, including allegations
that Dominion was a front for the communist government in Venezuela
and that its voting machines could switch votes from one candidate to
another — are at the center of the libel suit, one of the most
extraordinary brought against an American media company in more than a
generation.

 

 

First Amendment scholars say the case is a rarity in libel law.
Defamation claims typically involve a single disputed statement. But
Dominion’s complaint is replete with example after example of false
statements, many of them made after the facts were widely known. And
such suits are often quickly dismissed, because of the First
Amendment’s broad free speech protections and the high-powered
lawyers available to a major media company like Fox. If they do go
forward, they are usually settled out of court to spare both sides the
costly spectacle of a trial.

But Dominion’s $1.6 billion case against Fox has been steadily
progressing in Delaware state court this summer, inching ever closer
to trial. There have been no moves from either side toward a
settlement, according to interviews with several people involved in
the case. The two companies are deep into document discovery, combing
through years of each other’s emails and text messages, and taking
depositions.

These people said they expected Rupert and Lachlan Murdoch, who own
and control the Fox Corporation, to sit for depositions as soon as
this month.

Rupert Murdoch, chairman of the Fox Corporation, and his son Lachlan
Murdoch, the company’s chief executive, in 2017. Credit...Drew
Angerer/Getty Images

The case threatens a huge financial and reputational blow to Fox, by
far the most powerful conservative media company in the country. But
legal scholars say it also has the potential to deliver a powerful
verdict on the kind of pervasive and pernicious falsehoods — and the
people who spread them — that are undermining the country’s faith
in democracy.

“We’re litigating history in a way: What is historical truth?”
said Lee Levine, a noted First Amendment lawyer who has argued several
major media defamation cases. “Here you’re taking very recent
current events and going through a process which, at the end, is
potentially going to declare what the correct version of history
is.”

The case has caused palpable unease at the Fox News Channel, said
several people there, who would speak only anonymously. Anchors and
executives have been preparing for depositions and have been forced to
hand over months of private emails and text messages to Dominion,
which is hoping to prove that network employees knew that wild
accusations of ballot rigging in the 2020 election were false. The
hosts Steve Doocy, Dana Perino and Shepard Smith are among the current
and former Fox personalities who either have been deposed or will be
this month.

Dominion is trying to build a case that aims straight at the top of
the Fox media empire and the Murdochs. In court filings and
depositions, Dominion lawyers have laid out how they plan to show that
senior Fox executives hatched a plan after the election to lure back
viewers who had switched to rival hard-right networks, which were
initially more sympathetic than Fox was to Mr. Trump’s voter-fraud
claims.

Libel law doesn’t protect lies. But it does leave room for the media
to cover newsworthy figures who tell them. And Fox is arguing, in
part, that’s what shields it from liability. Asked about
Dominion’s strategy to place the Murdochs front and center in the
case, a Fox Corporation spokesman said it would be a “fruitless
fishing expedition.” A spokeswoman for Fox News said it was
“ridiculous” to claim, as Dominion does in the suit, that the
network was chasing viewers from the far-right fringe.

Fox is expected to dispute Dominion’s estimated self-valuation of $1
billion and argue that $1.6 billion is an excessively high amount for
damages, as it has in a similar defamation case filed by another
voting machine company, Smartmatic.

A spokesman for Dominion declined to comment. In its initial
complaint
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the company’s lawyers wrote that “The truth matters,” adding,
“Lies have consequences.”

A Dominion machine during a test of voting equipment this month in
Burnsville, Minn. Credit...Stephen Maturen/Getty Images

For Dominion to convince a jury that Fox should be held liable for
defamation and pay damages, it has to clear an extremely high legal
bar known as the “actual malice” standard. Dominion must show
either that people inside Fox knew what hosts and guests were saying
about the election technology company was false, or that they
effectively ignored information proving that the statements in
question were wrong — which is known in legal terms as displaying a
reckless disregard for the truth.

 

 

A judge recently ruled that Dominion had met that actual malice
standard “at this stage,” allowing it to expand the scope of its
case against Fox and the kind of evidence it can seek from the
company’s senior executives.

In late June, Judge Eric M. Davis of Delaware Superior Court denied a
motion
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Fox that would have excluded the parent Fox Corporation from the case
— a much larger target than Fox News itself. That business
encompasses the most profitable parts of the Murdoch American media
portfolio and is run directly by Rupert Murdoch, 91, who serves as
chairman, and his elder son, Lachlan, the chief executive.

Soon after, Fox replaced its outside legal team on the case and hired
one of the country’s most prominent trial lawyers — a sign that
executives believe that the chances the case is headed to trial have
increased.

Dominion’s lawyers have focused some of their questioning in
depositions on the decision-making hierarchy at Fox News, according to
one person with direct knowledge of the case, showing a particular
interest in what happened on election night inside the network in the
hours after it projected Mr. Trump would lose Arizona. That call
short-circuited the president’s plan to prematurely declare victory,
enraging him and his loyalists and precipitating a temporary ratings
crash for Fox.

These questions have had a singular focus, this person said: to place
Lachlan Murdoch in the room when the decisions about election coverage
were being made. This person added that while testimony so far
suggests the younger Murdoch did not try to pressure anyone at Fox
News to reverse the call — as Mr. Trump and his campaign aides
demanded the network do — he did ask detailed questions about the
process that Fox’s election analysts had used after the call became
so contentious.

Fox anchors mentioned in the Dominion suit include, from left, Maria
Bartiromo, Lou Dobbs and Jeanine Pirro. Credit...Associated Press

Fox’s legal team has cited the broad protections the First Amendment
allows, arguing that statements about Dominion machines from its
anchors like Mr. Dobbs and Ms. Bartiromo, and guests like Rudolph W.
Giuliani and Sidney Powell, were protected opinion and the kind of
speech that any media organization would cover as indisputably
newsworthy.

“When the president and his lawyers are making allegations, that in
and of itself is newsworthy,” Dan Webb, the trial lawyer brought in
by Fox several weeks ago, said in an interview. “To say that
shouldn’t be reported on, I don’t think a jury would buy that. And
that’s what I think the plaintiffs are saying here.”

Mr. Webb’s most recent experience in a major media defamation case
was representing the other side: a South Dakota meat manufacturer in a
lawsuit against ABC for a report about the safety of low-cost
processed beef trimmings, often called “pink slime.” The case was
settled in 2017.
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But Fox has also been searching for evidence that could, in effect,
prove the Dominion conspiracy theories weren’t really conspiracy
theories. Behind the scenes, Fox’s lawyers have pursued documents
that would support numerous unfounded claims about Dominion, including
its supposed connections to Hugo Chávez, the Venezuelan dictator who
died in 2013, and software features that were ostensibly designed to
make vote manipulation easier.

According to court filings, the words and phrases that Fox has asked
Dominion to search for in internal communications going back more than
a decade include “Chavez” and “Hugo,” along with
“tampered,” “backdoor,” “stolen” and “Trump.”

Rudolph W. Giuliani and Sidney Powell were among the major purveyors
of election conspiracy theories on Fox. Credit...Jacquelyn
Martin/Associated Press

Fox News and Fox Business also gave a platform to the MyPillow founder
Mike Lindell. Credit...Manuel Balce Ceneta/Associated Press

Fox News and Fox Business gave a platform to some of the loudest
purveyors of these theories, including Mike Lindell, the MyPillow
founder, and Mr. Giuliani, the president’s personal lawyer, in the
days and weeks after major news outlets including Fox declared Joseph
R. Biden Jr. the president-elect. In one interview, Mr. Giuliani
falsely claimed that Dominion was owned by a Venezuelan company with
close ties to Mr. Chavez, and that it was formed “to fix
elections.” (Dominion was founded in Canada in 2002 by a man who
wanted to make it easier for blind people to vote.)

 

 

Mr. Dobbs, who conducted one of the interviews cited in Dominion’s
complaint, responded encouragingly to Mr. Giuliani, saying he believed
he was witnessing “the endgame to a four-and-a-half-year-long effort
to overthrow the president of the United States.” Fox canceled Mr.
Dobbs’s Fox Business show last year, though it has never issued a
retraction for any of the commentary about Dominion.

Dominion has also filed separate lawsuits against Mr. Giuliani, Ms.
Powell and Mr. Lindell.

Dominion says in its complaint that in the weeks after the election,
people started leaving violent voice mail messages at its offices,
threatening to execute everyone who worked there and blow up the
headquarters. At one office, someone hurled a brick through a window.
The company had to spend hundreds of thousands of dollars on security
and lost hundreds of millions more in business, according to its
complaint.

“The harm to Dominion from the lies told by Fox is unprecedented and
irreparable because of how fervently millions of people believed them
— and continue to believe them,” its complaint said.

The company has tried to draw a connection between those falsehoods
and the Jan. 6 siege at the Capitol. “These lies did not simply harm
Dominion,” the company said in the complaint. “They harmed
democracy. They harmed the idea of credible elections.”

Dominion’s lawsuit includes this photo of Eric Munchel in front of a
television tuned to Fox Business. Credit...Eric Munchel

As part of its case, it cites one of the most indelible images from
the Jan. 6 attack: a man in the Capitol on Jan. 6, 2021, clutching zip
ties in his left hand. Also in the suit is a second photo of the man,
later identified as Eric Munchel
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Tennessee, in which he is brandishing a shotgun, with Mr. Trump on a
television in the background. The television is tuned to Fox Business.

But the hurdle Dominion must clear is whether it can persuade a jury
to believe that people at Fox knew they were spreading lies.

“Disseminating ‘The Big Lie’ isn’t enough,” said RonNell
Andersen Jones, a law professor and First Amendment scholar at the
University of Utah’s S.J. Quinney College of Law. “It has to be a
knowing lie.”

_JEREMY W. PETERS covers media and its intersection with politics, law
and culture. He is the author of “Insurgency: How Republicans Lost
Their Party and Got Everything They Ever Wanted.” He is a
contributor to MSNBC. @jwpetersnyt
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* First Amendment
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* fake news
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* The Big Lie
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* voting machines
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* lawsuit
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