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Judge rejects Fox News request to dismiss Dominion Voting’s defamation lawsuit over election claims

Dominion Voting Systems sued Fox News for $1.6 billion on March 26 for repeated false claims about election fraud that the network’s hosts and guests made. (Video: JM Rieger/The Washington Post)
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A judge on Thursday rejected a request from Fox News to dismiss a $1.6 billion defamation lawsuit from Dominion Voting Systems over baseless claims made against the company during the 2020 presidential election, allowing the suit to move forward.

Delaware Superior Court Judge Eric M. Davis said it was “reasonably conceivable” for the Denver-based voting-machine company to have a defamation claim.

“The Court can infer that Fox intended to avoid the truth,” Davis wrote in a 52-page ruling. “Whether Dominion ultimately will prove Fox’s actual malice by clear and convincing evidence is irrelevant on a motion to dismiss. … Accordingly, Fox’s Motion should be denied.”

Dominion filed the lawsuit against Fox News earlier this year, claiming that some of its highest-profile on-air talent helped elevate false charges that the company had changed votes to favor Joe Biden over then-President Donald Trump. The lawsuit claims that hosts such as Tucker Carlson, Sean Hannity and Jeanine Pirro brought Trump allies onto their shows to spread lies asserting that Dominion was using algorithms in voting machines that were created in Venezuela to rig multiple elections for Hugo Chávez, the late president.

Dominion alerted Fox News and its anchors to information disproving the false claims being broadcast against the company, according to the judge. The allegations from Dominion in the lawsuit show that Fox was given “signs indicating the reports were false,” Davis wrote.

“Fox possessed countervailing evidence of election fraud from the Department of Justice, election experts, and Dominion at the time it had been making its statements,” the judge wrote. “The fact that, despite this evidence, Fox continued to publish its allegations against Dominion, suggests Fox knew the allegations were probably false.”

In a statement, Fox News Media said it would continue to fight Dominion’s defamation lawsuit.

“As we have maintained, Fox News, along with every single news organization across the country, vigorously covered the breaking news surrounding the unprecedented 2020 election, providing full context of every story with in-depth reporting and clear-cut analysis,” the company said. “We remain committed to defending against this baseless lawsuit and its all-out assault on the First Amendment.”

A Dominion spokesperson did not immediately respond to a request for comment early Friday. Dominion spokeswoman Claire Bischoff told Bloomberg News that the company was pleased to see the legal process continue in Dominion’s effort to “hold Fox accountable.”

The judge’s ruling, considered a major win for Dominion, comes about a year after the company was the subject of many baseless accusations about election fraud following November 2020. After his loss, Trump and his allies spread false claims that, as he put it, voting software is “used in states where tens of thousands of votes were stolen from us and given to Biden.” When he was still on Twitter, Trump, who described Dominion as “horrible, inaccurate and anything but secure,” retweeted a baseless report that the voting-machine system had “deleted 2.7 million Trump votes nationwide.”

Election results under attack: Here are the facts

There is no evidence that any voting systems were compromised, according to the Cybersecurity and Infrastructure Security Agency, which is part of the Department of Homeland Security. Trump’s attorney general, William P. Barr, also confirmed that he had “not seen fraud on a scale that could have effected a different outcome in the election.”

The lawsuit specifies how Trump allies such as Rudolph W. Giuliani, Sidney Powell and Mike Lindell were given platforms on shows hosted by Carlson, Hannity and Pirro to spread the false claims of election fraud. Fox Business Network host Maria Bartiromo and Lou Dobbs, whose show was canceled earlier this year, are also mentioned in the lawsuit.

Dominion pointed to how Hannity and Dobbs “brought on Mr. Giuliani and Ms. Powell to assert their claims that Dominion rigged the election by changing votes in its machines.” Another instance mentioned in the lawsuit involved when Carlson brought Lindell, the founder of MyPillow, onto his show to talk about his ban from Twitter, only for him to spread false claims of election fraud against Dominion.

“Carlson endorsed Mr. Lindell’s claim that Mr. Lindell found the machine fraud and had all the evidence,” according to the complaint.

Dominion eventually sent an email to Fox personalities and producers titled, “SETTING THE RECORD STRAIGHT: FACTS & RUMORS,” the judge noted. Election officials and experts also went on the network to emphasize how there was “absolutely no evidence” that Dominion changed votes during the election.

“Despite these efforts, Fox continued to promote known lies on its broadcasts, websites, social media accounts and subscription service platforms,” Davis wrote. “Mr. Dobbs, Ms. Bartiromo, and Mr. Hannity also continued to give Ms. Powell and Mr. Giuliani a platform to disseminate lies about Dominion by hosting them on their shows. Mr. Dobbs, Ms. Bartiromo and Mr. Hannity likewise endorsed and repeated those lies.”

The lawsuit claimed that Bartiromo “continued promoting lies even though she had been specifically notified that independent fact-checkers, government officials and election security experts debunked those lies about Dominion.”

“Moreover, Ms. Bartiromo had actual knowledge that Georgia conducted a hand recount of every paper ballot,” Davis wrote.

The network has defended its coverage, arguing that media must be able to fully report a story that involves claims that hit at the core of U.S. democracy. The judge rejected Fox’s argument that some of its top personalities were reporting the news with flair, saying that “Fox’s reporting comprised opinion ‘mixed’ with false facts.”

“Although Fox classifies its reporters’ remarks as ‘commentary’ that used ‘loose and hyperbolic rhetoric’ for entertainment value, even loose and hyperbolic language can be actionable if it rests on false statements of fact undisclosed to viewers,” the judge said.

The lawsuit against Fox is one of several that Dominion has brought stemming from false claims after the election. Separate defamation lawsuits filed by Dominion against Powell, a former Trump campaign lawyer, and Giuliani, Trump’s former attorney, previously survived motions to dismiss in federal court in Washington.

Dominion isn’t the only election technology company to sue Fox over its election coverage. Smartmatic Corp. is suing the network for $2.7 billion in damages, as part of a lawsuit that also names Pirro, Bartiromo and Dobbs as defendants. Fox has also requested to dismiss that lawsuit.

The Dominion defamation lawsuit against Fox will continue toward a final judgment, with both sides gathering evidence in the case.

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