In the month after the 2020 presidential election, Dominion Voting Systems had warned Fox News: We’re considering legal action.
Two years later, the landmark case against Fox has offered a rare glimpse behind the scenes of the major television network as executives and hosts privately shared their doubts about the accusations their network was promoting on air. Now, the lawsuit is set to go to trial next month.
Why Dominion sued Fox News
After losing the election, Trump and his allies had floated several baseless claims to explain the loss. One that particularly gained traction was an accusation that thousands of votes for Trump were switched to Joe Biden, particularly in Antrim County, Mich. (State officials verified with a hand count of ballots that Dominion machines tabulated votes accurately.)
After Trump and his supporters were upset with Fox for calling Arizona for Biden on the night of the election, the network did not want to further alienate its Trump-loving viewers and repeated these claims, Dominion lawyers have alleged. Dominion says Fox aired bogus assertions, including that its machines were manufactured in Venezuela to rig elections for Hugo Chávez, while executives and hosts privately doubted the claims.
“Fox engaged in this knowing and reckless propagation of these enormous falsehoods in order to profit off these lies,” the lawsuit read. “Fox wanted to continue to protect its broadcast ratings, catering to an audience deeply loyal to President Trump.”
Dominion has pointed to evidence, including internal emails and texts, showing the conversations between the network’s biggest personalities that raised questions about the accusations.
“Sidney Powell is lying,” prime-time star Tucker Carlson wrote to his producer. Anchor Bret Baier wrote to an executive: “There is NO evidence of fraud.”
Fox News’s defense
Fox has argued that its reporting and commentary on Dominion fall under legitimate newsgathering.
“It is plain as day that any reasonable viewer would understand that Fox News was covering and commenting on allegations about Dominion, not reporting that the allegations were true,” Fox’s lawyers wrote in a court filing.
They cite the New York Times v. Sullivan decision, which held that public officials must show that false statements made about them had been made with “actual malice” — in other words, with knowledge or reckless disregard.
Fox has also cited false election claims in its filings in an attempt to argue that the accusations were not so wildly improbable.
The network claimed Dominion used emails and texts out of context to fit its argument. In a statement Tuesday, Fox said Dominion had used “distortions and misinformation in their PR campaign to smear FOX News and trample on free speech and freedom of the press.”
Key moments and evidence from the lawsuit
The trial over the defamation case has yet to begin. But several moments already stand out.
- After months of hauling in network executives, producers and hosts for depositions, Dominion lawyers sat down with Rupert Murdoch, chairman of Fox News’s parent company. The 91-year-old media executive, the highest-profile person to be deposed by lawyers for Dominion, acknowledged that the network should have done more to challenge election claims. “I would have liked us to be stronger in denouncing it, in hindsight,” Murdoch said.
- In one tranche of documents released in the case, Fox executives and hosts voiced their concerns with what Trump’s lawyers were saying. “Terrible stuff damaging everybody,” Murdoch wrote to Fox News CEO Suzanne Scott about claims raised by Powell and Giuliani. In another message, Murdoch referred to the claims as “really crazy stuff” and said it was “very hard to credibly claim foul everywhere.”
- Other records show that Fox journalists were scolded if they reported information that called into question the claims. The internal backlash grew as reporters were declared a “brand threat” or chastised by executives for not “respecting our audience.” In one message, Lachlan Murdoch, the head of Fox News’s parent company, shared displeasure when he learned about reporters raising questions about a Trump rally after his loss. “News guys have to be careful how they cover this rally,” Murdoch wrote. “The narrative should be this is a huge celebration of the president.”
- The messages also show fighting within the network as it struggled to hold on to viewers. In one text exchange, hosts Carlson, Sean Hannity and Laura Ingraham complain of Fox’s news operation — rather than its evening opinion shows — for causing the drop. And in a conversation with Fox’s former managing editor for Washington, Bill Sammon, former politics editor Chris Stirewalt writes: “What I see us doing is losing the silent majority of viewers as we chase the nuts off a cliff.”
What this means for freedom of the press
Legal experts have said the disclosure of emails and texts that suggest Fox executives and personalities knew the claims they were broadcasting were false have offered blow after blow to Fox’s defense against the defamation suit.
“You just don’t often get smoking-gun evidence of a news organization saying internally, ‘We know this is patently false, but let’s forge ahead with it,’” RonNell Andersen Jones, a University of Utah professor who specializes in media law, previously told The Washington Post.
But Fox says Dominion has used “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 claims it did not have actual malice, a standard that makes it hard to win defamation lawsuits because Dominion has the burden of proving the network’s intention.
Still, there are limits to the actual malice standard, David Schulz, who runs the Media Freedom and Information Access Clinic at Yale Law School, told The Post’s Rachel Weiner.
Fox is “essentially saying that you have a defense of ‘not guilty by reason of insanity’ in a libel case,” Schulz said. “That can’t be right.”