Sean Hannity does not consider himself a journalist. “I’m a member of the press,” he said on his Fox News show last year, “but I don’t claim to be a journalist.”
Murdoch’s comments, taken together with the sworn testimony of key Fox News lieutenants and hosts recently made public, paint a muddled picture of what exactly Fox’s most popular hosts do. Are they pure pundits or opinionated journalists? In other words, are viewers expected to believe them?
That distinction could be a factor in Dominion Voting Systems’ $1.6 billion defamation lawsuit against Fox News, which is expected to go to trial in Delaware next month — and it’s an issue that could cut both ways for Fox.
Fox argued in a recent filing that commentators who aired false claims that Dominion rigged voting machines to help Joe Biden were not acting irresponsibly because they were presenting their opinions on newsworthy allegations, as opposed to reporting on them. “To the extent Dominion suggests that a reasonable viewer would expect only sober factual reporting on all of Fox News’ shows simply because Fox News is a ‘news organizatio[n],’ that is wrong,” the network’s lawyers wrote.
Some legal scholars think the network could prevail with a jury on this point. “Recklessness for a journalist might be a different standard than recklessness for a pundit,” said Jane Kirtley, a professor of media ethics and law at the University of Minnesota.
Yet Fox lawyers have also described its opinion hosts in language that evokes terminology typically used to defend journalists, saying that they “covered the president’s allegations about Dominion because the president’s efforts to overturn the election results were newsworthy.” And they have claimed that the hosts are entitled to the same rights as journalists to protect their confidential sources — the reason that dozens of Dominion’s exhibits are currently peppered with redactions.
The Delaware Superior Court judge overseeing the case could decide as early as this week whether to lift many of these redactions.
A Fox News spokesperson called the lawsuit “another flagrant attack on the First Amendment,” adding that “Fox News will continue to fiercely protect the free press as a ruling in favor of Dominion would have grave consequences for journalism across this country.”
After deposing Fox employees and collecting texts and emails through the discovery process, Dominion has compiled what it sees as evidence that some hosts went outside the bounds of journalism by effectively endorsing statements made on-air after the November 2020 election by lawyers for Donald Trump who appeared on their shows as guests. In one case, Dominion unearthed communications suggesting that host Maria Bartiromo tried to trigger a congressional investigation of the company. “Can you do anything in the way of investigating from Intel committee on Dominion,” she texted a member of Congress, whose name has been redacted from court records, several days after Election Day.
Bartiromo did not deny the communication in her deposition, but painted it as an act of fact-gathering. “I asked him to investigate the charges that President Trump was making,” she said.
Depositions made public as part of the lawsuit indicate that the network’s executives and personalities disagreed on the exact definition of their roles.
Murdoch testified that he objected to opinion host Laura Ingraham attending an election-night watch party at the White House, because “I think [hosts] should show some distance and independence.”
David Clark, a former senior vice president at Fox, when asked by a Dominion lawyer whether Hannity’s show is “a credible source of news,” said it was not: “It’s an opinion show. So the answer is no.” He gave the same answer regarding Jeanine Pirro’s weekend opinion show — but acknowledged that her fans might disagree. Those viewers, he agreed, “rely on Justice Jeanine Pirro in her show to be a credible source of news.”
But Pirro, a former district attorney and county judge described herself as “a reporter on Fox News” in her own deposition. And another vice president, Meade Cooper, described Pirro, Hannity and top-rated host Tucker Carlson as “credible news sources.”
Carlson, for his part, said in a January 2021 private message made public in the lawsuit that, “Our job is not to provide news coverage,” he said. “Not even close. Our job is to explain what things mean.”
The distinction might be lost on the jury, said media lawyer Lucy A. Dalglish. “Obviously Fox is going to do everything they can to paint these people at journalists,” she said. But “the public has a very, very hard time distinguishing between opinionators and reporters.”
The issue has proved contentious even before a trial can begin. Fox has cited legal protections that allow journalists to keep their sources and reporting process confidential, including redactions to 45 documents for such a purpose, including several pages related to Hannity. With Pirro’s deposition, Fox argued that the blackouts were necessary because they contain “proprietary newsgathering and reporting information.”
Dominion has challenged the redactions, and several media companies have also filed objections, though the judge in the case, Eric M. Davis, has not yet ruled on the matter.
Fox has already benefited legally from the enhanced editorial leeway sometimes given to pundits. In 2020, Carlson won a defamation case filed by former Playboy model Karen McDougal, whom he had accused of extortion for revealing she had an affair with Donald Trump. A district judge ruled, essentially, that Carlson’s claims should be taken as “exaggeration” and “non-literal commentary” — not statements of fact.
Similarly, MSNBC’s Rachel Maddow also defeated a libel lawsuit, filed by the owner of conservative network One America News Network, after the judge reasoned that her program is an opinion show and that “the medium … makes it more likely that a reasonable viewer would not conclude that the contested statement implies an assertion of objective fact.” (Fox cited both cases in a recent filing.)
“Expressing hyperbolic opinions is protected by the First Amendment, and it doesn’t matter if you’re wearing a reporter hat or an opinion hat, you’re still going to be protected,” Kirtley, the University of Minnesota professor, said. “But if your opinion is based on facts that you’ve twisted and are lying about, then that can divest you of that privilege.”
While Fox has a separate news and opinion operations, some Fox employees struggled in their depositions to elucidate the distinction. News anchor Bret Baier, a prominent journalist on the news side of the network, insisted that viewers can distinguish between news programs and opinion. But he said that “opinion shows on both sides of the aisle do things that, again, sometimes are on the edges of what is absolute fact.”
Fox has argued that it should be granted a “neutral reportage privilege” — leeway to report newsworthy allegations regardless of whether they end up being false. But Dominion, citing a 1976 legal precedent, has countered that Fox lost those protections when it effectively “endorsed” or distorted the comments of its on-air guests.
The lawsuit is a perfect test for the privilege, said Media Law Resource Center executive director George Freeman, who believes the protection is essential for journalism. “I’ve been campaigning for wider recognition of neutral reportage and to me this is a great opportunity,” he said. It would be a mistake for Fox “to not make it front and center in this case.”
But Dominion believes such a test will break in its favor. While dozens of Fox News executives, hosts and producers argued in their depositions that the network was simply airing newsworthy allegations, lawyers for Dominion had more luck with the man on top of the food chain, Fox News co-founder Rupert Murdoch.
While Murdoch contended that Fox as a company did not “endorse” the conspiracy theories, he acknowledged some of its hosts did. “Yes, they endorsed,” he said, according to a transcript of the deposition.
“Even Rupert Murdoch had to concede the point,” Dominion’s lawyers wrote in a subsequent filing.