Defamation suit about election falsehoods puts Fox on its heels
By Jeremy W. Peter
In the weeks after former President Donald Trump lost the 2020 election, 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, 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 against Fox Corp., 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 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 a U.S. 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 Fox Corp., to sit for depositions as soon as this month.
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. 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 Trump’s voter fraud claims.
Libel law does not protect lies. But it does leave room for the media to cover newsworthy figures who tell them. And Fox is arguing, in part, that is what shields it from liability. Asked about Dominion’s strategy to place the Murdochs front and center in the case, a Fox Corp. spokesperson said it would be a “fruitless fishing expedition.” A spokesperson 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 spokesperson for Dominion declined to comment. In its initial complaint, the company’s lawyers wrote, “The truth matters,” adding, “Lies have consequences.”
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 — in legal terms, 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 from Fox that would have excluded the parent Fox Corp. 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 chair, and his elder son, Lachlan, the CEO.
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 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 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’s legal team has cited the broad protections the First Amendment allows, arguing that statements about Dominion machines from its anchors like Dobbs and Bartiromo and guests like Rudy 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.”
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.
But Fox has also been searching for evidence that could, in effect, prove the Dominion conspiracy theories were not 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.”
Fox News and Fox Business gave a platform to some of the loudest purveyors of these theories, including Mike Lindell, the MyPillow founder, and Giuliani, the president’s personal lawyer, in the days and weeks after major news outlets including Fox declared Joe Biden the president-elect. In one interview, Giuliani falsely claimed that Dominion was owned by a Venezuelan company with close ties to 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.)
Dobbs, who conducted one of the interviews cited in Dominion’s complaint, responded encouragingly to Giuliani, saying he believed he was witnessing “the endgame to a 4-1/2-year-long effort to overthrow the president of the United States.” Fox canceled Dobbs’ 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 Giuliani, Powell and Lindell.
Dominion says in its complaint that in the weeks after the election, people started leaving violent voicemail 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.”
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 of Tennessee, in which he is brandishing a shotgun, with 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.”