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Opinion Why the Dominion lawsuit against Fox News isn’t a slam dunk

The Fox News studios and headquarters in New York on March 21. (Ted Shaffrey/AP)
5 min

The discovery process in the $1.6 billion defamation lawsuit filed by Dominion Voting Systems against Fox News has been downright humiliating for the network. Numerous texted and emailed comments from Fox executives and on-air talent demonstrated that they thought claims broadcast on the network about a “stolen” 2020 election — made by President Donald Trump and allies, including attorneys Rudy Giuliani and Sidney Powell — were insane.

They also thought some of their co-workers were loony, as when Fox executive David Clark described Powell’s theories as “Crazy town,” saying he was relieved that Fox News host Jeanine Pirro hadn’t interviewed Powell or Giuliani on a particular day, and Jerry Andrews — Pirro’s executive producer — replied, “Jeanine is just as nuts.”

The news network sounds like a pit of vipers. You could get the impression from the lavish media attention paid to these revelations that the internal communications were just the sort of smoking-gun evidence Dominion needed to clinch its case.

But at issue in the lawsuit is not whether you like Fox News, or whether you think it did a good job of covering Trump’s claims that the election was stolen, or whether Fox employees thought their co-workers belonged in an asylum. At issue is whether any of the potentially defamatory statements about Dominion came from Fox News employees, rather than guests such as Trump, Giuliani and Powell, and whether Fox hosts’ comments were knowingly false statements of fact, rather than expressions of opinion.

Paul Clement would like for people to keep that in mind. Clement is as heavy a hitter as they come in the legal world. The former solicitor general under President George W. Bush has argued more Supreme Court cases since 2000 than any other lawyer, in or out of government. Last year alone, he notched two significant Supreme Court wins, overturning a New York state law on carrying guns in public and, in a case on the separation of church and state, securing the right of a high school football coach to lead on-field prayers after games.

Now Clement is attempting to get Fox News off the hook in the Dominion case and a similar $2.7 billion defamation lawsuit filed by Smartmatic, another maker of voting machines.

“What makes this such an important First Amendment case is that the press has to have the ability to report newsworthy allegations and denials by public figures without having to worry about whether the allegations that are being made by the president, or the denials being made by a governor, are in fact true,” Clement told me. “If the president of the United States is alleging that there was fraud in an election, that’s newsworthy, whether or not there’s fraud in the election.”

He added that when a president claims there is fraud in an election even after the unified assessment of experts is that no fraud occurred, it may well be even more newsworthy.

Clement wrote in an early filing in the case that if Trump’s “surrogates fabricated evidence or told lies with actual malice, then a defamation action may lie against them, but not against the media that covered their allegations and allowed [the surrogates] to try to substantiate them.”

The Fox News defense is that even when hosts made statements that denounced the voting-machine companies or suggested that somehow the election had been stolen, they were expressing opinions, protected by the First Amendment.

Critics might point to an interview with Powell conducted by Lou Dobbs, at the time a Fox Business host, on Nov. 16, 2020. When Powell asserted that government officials were ignoring evidence of voting-machine fraud, calling it “willful blindness,” Dobbs replied: “It is more than just a willful blindness. This is people trying to blind us to what is going on.”

But Clement demurs. “A lot” of Dobbs’s statements “that come the closest to supporting what Giuliani or Powell said — those statements themselves are protected opinion,” Clement told me. “The broader nature of the Lou Dobbs show is important context for trying to figure out whether that’s opinion or not.”

Fox News contends that punishing the network for the statements of Trump, Giuliani and the rest endangers the First Amendment and establishes a dangerous new precedent where journalists and their employers could be held liable for the statements of the people they interview.

Dominion and Smartmatic assert that their good names have been permanently smeared, that the companies will be the subject of unhinged conspiracy theories for years to come, and that for Fox News’s role in that process, it owes them restitution to the tune of billions.

Many news outlets have seemed to relish reporting on the no-longer-private communications of Fox executives and on-air talent. That’s understandable — the curtain is rarely pulled back on media operations, much less one with so few sympathizers in the industry. But the Dominion case might not be the slam dunk that many seem to think, and in the long run, that could be a good thing for the news business.