Starting tomorrow, Fox News is scheduled to be on trial. Dominion Voting Systems, which makes voting machines, is suing the cable news network for $1.6 billion. Dominion claims that Fox spread a false conspiracy theory that its machines were rigged against Donald Trump in the 2020 election.
The trial had been set to start today, but the judge overseeing the case announced a one-day delay last night. Fox may be seeking to settle the case before a trial can begin, The Wall Street Journal reported.
We have already seen some of the evidence for Dominion’s side. Texts and emails uncovered through the lawsuit show that several of Fox’s executives, hosts and producers privately doubted the claims against Dominion, which were promoted by Trump, but amplified them on the air anyway.
Even with this evidence, Dominion may not have an easy time winning the case because of legal protections for media companies. Those protections were established by a 1964 Supreme Court ruling, New York Times v. Sullivan, based on the First Amendment’s safeguards for freedom of speech and the press. The ruling requires that defamation lawsuits by public figures against media companies prove “actual malice,” meaning that journalists must have known an allegation was false but broadcast it anyway or have acted so recklessly that they overlooked the facts.
“It is an incredibly high bar to prove,” said my colleague Katie Robertson, who is covering the lawsuit.
The case will test whether Fox’s brand of journalism — which includes a long record of spreading falsehoods (such as about where Barack Obama was born) — is legally vulnerable. Today’s newsletter will look at both sides of the case and its broader implications.
What is Dominion’s argument?
There is no doubt that Trump’s allegations against Dominion were false. The judge overseeing the case, Eric Davis of the Delaware Superior Court, has already ruled that Dominion won’t have to prove that the claims were wrong during the trial. Its task will be proving actual malice, as well as proving financial damage because of the coverage.
To do that, Dominion will point to a trove of texts, emails and other documents showing that Fox News’s leaders and hosts doubted the claims against Dominion but aired them anyway.
Referring to claims that Dominion’s software rigged the election, Tucker Carlson texted his producer, Alex Pfeiffer, that the idea was “absurd.” He also texted that Sidney Powell, one of Trump’s lawyers, was “lying.” Yet Carlson later argued on his show, “This is a real issue no matter who raises it or who tries to dismiss it out of hand as a conspiracy theory.”
Why did Carlson do this? It seems the answer has to do with his audience. Carlson initially cast doubt on Powell’s claims on air, saying, “She never demonstrated that a single actual vote was moved illegitimately by software from one candidate to another. Not one.” His audience revolted, criticizing him for questioning a Trump ally. Carlson then walked back his public skepticism on air.
It’s a recurring theme in the texts and emails. Fox’s leaders and hosts expressed doubt about the conspiracy theory in private, but they also raised concerns about “respecting our audience.” To avoid losing viewers to competitors like Newsmax, Fox hosts and producers seemingly chose to broadcast and support the claims by Trump and his allies.
What is Fox News’s argument?
Fox News previously argued that even though it knew the claims against Dominion were false, it had to cover them anyway because they were newsworthy. But Judge Davis has ruled that Fox won’t be able to make that argument in the trial. “Just because someone is newsworthy,” he said, referring to Trump and his lawyers, “doesn’t mean you can defame someone.”
Without that argument, Fox has focused on others. The network argues that Dominion still needs to prove that Fox’s hosts — who ultimately decide what to air — knew the claims were false and broadcast them anyway. And Fox claims that at least some of the hosts genuinely believed the allegations and therefore were not intentionally defaming anyone.
Mostly, though, Fox is relying on Dominion failing to clear the high legal standard established by New York Times v. Sullivan. Dominion, not Fox, has the burden of proof.
Legal experts have said that Dominion’s case is stronger than most defamation lawsuits but that the company still may not win. “Proving this in a legal sense is more complicated than proving it in the court of public opinion,” said my colleague Jim Rutenberg, who wrote a Times Magazine article about the case.
What are the implications?
Fox News argues that if it loses, the case will do irreparable damage to press freedoms, opening all news outlets to lawsuits. “A free-flowing, robust American discourse depends on First Amendment protections for the press’ news gathering and reporting,” a network spokesperson said in a statement.
Some legal experts argue the opposite, saying that a loss for Fox could bolster protections for the press. Fox’s actions in covering the 2020 election were so egregious, the argument goes, that any legal standard that protected them would be no standard at all: For First Amendment protections to endure, news organizations need to be held accountable for knowingly spreading false and damaging information.
Sign up for our newsletter recapping the latest Fox-Dominion trial updates.
For more: Dominion holds powerful sway in the U.S. elections industry. Read more about the company.
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