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Opinion Judge: Fox Corp. can’t wiggle out of Dominion’s ‘big lie’ lawsuit

Rupert Murdoch, chairman of News Corp. and co-chairman of 21st Century Fox, on July 10, 2018 in Sun Valley, Idaho. (Drew Angerer/Getty Images)
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The most famous hosts at Fox News have long boasted that Rupert Murdoch, the company patriarch, endorses their commentary, or at least their right to blast it over his airwaves. “I’m 100 percent his bitch,” Tucker Carlson said in a 2010 radio appearance. “Whatever Mr. Murdoch says, I do.”

That dynamic — the role of Fox Corporation chair Rupert Murdoch and his son, Fox Corporation chief executive Lachlan Murdoch, in the programming of Fox News — is at the center of a closely watched lawsuit in Delaware. In 2021, Dominion Voting Systems filed a suit against Fox News, several of its anchors and pro-Trump guests, and an additional action against its corporate parent, Fox Corp., and Fox Broadcasting. Both actions stemmed from claims on the network that Dominion had participated in a nationwide voter-fraud scheme that deprived then-President Donald Trump of victory in the 2020 presidential election. Those claims were baseless.

Delaware Judge Eric M. Davis on Tuesday rejected Fox Corp.’s motion to dismiss, concluding that Dominion had “adequately pleaded proximate causation based on its ‘factual allegations of wrongdoing attributable to the corporate parent’ — i.e., Fox Corporation.” The ruling follows similar court defeats for the conglomerate: In December, Davis rejected a dismissal motion in Dominion’s case against Fox News, and in March a New York judge did likewise in a defamation suit brought against Fox News, Fox Corp. and others by voting firm Smartmatic.

These developments turn up the heat on Fox News and its corporate parent for what stands out as the most irresponsible and destructive strain of coverage at a network that specializes in such material. And Tuesday’s ruling by Davis is particularly important because it invigorates a proceeding focused on Fox Corp. management — the folks poised to stop it all.

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Rarely has defamation law been invoked for more righteous ends.

In its initial complaint in the Fox Corp. case, Dominion’s attorneys mined a trove of reporting on the Murdochs’ hands-on management of Fox News. In an interview with the Hollywood Reporter cited in the complaint, for instance, current Fox News Media chief executive Suzanne Scott noted that Rupert Murdoch “methodically got himself fully entrenched in our day-to-day operation” following the 2016 ouster of then-Fox News chief Roger Ailes.

Another crisis emerged after the 2020 presidential election, according to the Dominion suit. Fact-based coverage by Fox News’s Decision Desk — which called Arizona early for Democratic candidate Joe Biden, triggering a MAGA backlash against the network — pushed core viewers toward other right-wing cable networks, including Newsmax and One America News (OAN), as the suit notes. Fox News’s two-decade ride atop the cable-news ratings appeared just a touch wobbly. Rupert Murdoch, accordingly, “reengaged” in Fox News’s decision-making.

Although Murdoch allowed Fox News to repeat the “big lie” conspiracy theories about Dominion and Smartmatic, the Dominion complaint notes that the Murdoch-controlled New York Post took a different tack. It editorialized that Trump should halt his “‘stolen election’ rhetoric” and knock off the “baseless conspiracies.” The Wall Street Journal, another Murdoch-controlled property, carried a similar message: “Mr. Trump’s legacy will be diminished greatly if his final act is a bitter refusal to accept a legitimate defeat,” the Journal editorialized on Nov. 7, 2020.

Dominion alleges that these contradictions — stolen election claims on Fox News; refutations of those claims in the New York Post and the Wall Street Journal — were proof of the Murdochs’ state of mind. “Given the concerns about rivals such as Newsmax and OAN, it is not surprising that although Rupert Murdoch did not believe President Trump’s election fraud claims, he nevertheless encouraged on-air personalities to perpetuate these claims,” reads the complaint.

In its motion to dismiss, Fox Corp. argued that the voting-tech company had failed to establish any “direct claims” against the defendant, among other rebuttals concerning the liability of a parent company for the actions of a subsidiary. “No individual at Fox Corporation is alleged to be a defamatory speaker, nor a producer, researcher, or editor of any of the challenged statements at issue,” reads the motion.

That defense didn’t impress Davis, who laid out why he allowed the Dominion suit to move forward:

Dominion alleges that: (1) Rupert Murdoch “controls everything” within Fox News; (2) when viewership of Fox News declined after the election, Rupert Murdoch stepped in “to call the shots directly;” (3) Rupert Murdoch “encouraged on-air personalities to perpetuate [] baseless claims” about Dominion after he and Lachlan Murdoch made a “‘business calculation’ to spread lies;” and (4) Fox Corporation “rewarded” those at Fox News who complied and “punished” those who did not.

What’s more, Davis found Dominion’s arguments about the discrepancies between Fox News and Murdoch newspapers on the “big lie” sufficient to overcome Fox Corp.’s motion to dismiss. The disconnect, writes Davis, drives at the “actual malice” standard required in some defamation cases. The allegations presented in the complaint, Davis writes, “support a reasonable inference that Rupert and Lachlan Murdoch either knew Dominion had not manipulated the election or at least recklessly disregarded the truth when they allegedly caused Fox News to propagate its claims about Dominion.”

The ruling finds that Dominion has “pleaded facts” sufficient to mount a legal claim in Delaware; at this point, the suit has not prevailed. Also: Davis granted a motion to dismiss Dominion’s claim against Fox Broadcasting, another part of the Fox conglomerate named as a defendant.

Fox declined to comment on the ruling.

Now comes a painful period for Fox Corp., which will have to deal with discovery requests from Dominion. (Fox Corp. argued in a court filing that the entire Dominion case against it represented Dominion’s “latest gambit in a series of discovery disputes” in its other case against Fox News.) That process could add meat and seasoning to the bare-bones depictions of Fox Corp. editorial interventions cited in the Dominion complaint.

It’s past time for such an excavation: Rupert Murdoch has presided over madness at Fox News. For too long he has let employees — Fox News hosts and PR types — provide the specious and disingenuous responses to network outrages.

He needs to be heard. And a deposition would be a dandy setting for such an imperative.

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