The central problem with Donald Trump’s effort to pretend he didn’t lose the 2020 election was that it depended on the nonsensical idea that myriad officials in numerous states conspired in similar ways to deny him a victory. He at first alleged a sweeping conspiracy involving hundreds of people and hundreds of thousands of votes, for which no evidence existed.
But then a new idea arose: Maybe it was electronic election machines, like those made by Dominion Voting Systems, that had somehow thrown the election? There was no evidence for this, either, but it was at least more defensible, solving the multistate problem and relying on vague assertions about technology that average observers — and more than one attorney working for Trump — couldn’t evaluate. So baseless, evidence-free claims about Dominion quickly took root and, to this day, thrive.
Dominion pushed back by filing defamation lawsuits against those propagating the allegation. Among the targets of its suits was the Fox Corporation and Fox News, where both hosts and guests had elevated the baseless claims to viewers.
Because of the protections offered by the First Amendment, there’s a high bar for suing a media organization for defamation. Established in the Supreme Court case New York Times v. Sullivan, the complainant must prove that the media organization was reckless in spreading false information. In a blockbuster legal filing made public on Thursday, lawyers for Dominion present wide-ranging evidence that Fox executives and on-air personalities should have known or, at times, explicitly knew that claims being made about the voting-machine company were false — but pressed forward in making them anyway.
If Dominion’s suit is successful (certainly not a given), it could severely damage Fox. And if that happens, the culpability for that damage rests solely with the network and its employees. But this wasn’t simply a one-off error by Fox. Instead, it was the result of a cascade of bad decisions and willful choices often centered not on presenting accurate information to its audience but, instead, on ensuring its audience stuck around.
A Fox spokesperson countered the Dominion suit in a statement.
“There will be a lot of noise and confusion generated by Dominion and their opportunistic private equity owners,” the spokesperson said, “but the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan.”
That will be determined in court. But these are the decisions that led to the suit in the first place.
Failing to challenge Trump’s false claims during his presidency. There would be no appetite for Trump’s false claims about election fraud had they not been given oxygen for months before the election. From the spring of 2020 forward, he and his team at the White House were elevating debunked and misleading claims about the purported risk of electoral fraud. Over and over, it was pointed out that these assertions were meritless and clearly motivated by Trump hoping to undermine a likely defeat. But Fox News rarely held Trump or his claims up to significant scrutiny.
“They, you know, by and large, didn’t get tough with us,” Trump’s former press secretary Stephanie Grisham said of the network in 2021. “They just took what we were saying and disseminated it.”
This was clearly because the network understood that Trump supporters were a central part of its audience. The Republicans most loyal to Trump were the ones who watched Fox News. On-air personalities like Shep Smith who challenged the prime-time-opinion hosts’ presentations of Trump found remaining at the network untenable.
“I thought it was important that I stay there,” he told CNN in 2021. “If you feel like the Fox viewers were getting mis- or disinformation, I was there to make sure that they got it straight.” This was a minority position.
There was a danger to the network in all of this. As Peter Baker and Susan Glasser wrote in their 2022 book “The Divider”: “What [Fox News founder Roger] Ailes saw in Trump that he did not see in any other Republican politician of recent years was someone who connected with the Fox audience even more than Fox did.”
That meant unusual deference to Trump so not to alienate viewers. So, coming into the 2020 election, Fox News’s audience had come to expect near-complete fealty to Trump’s rhetoric from the network.
The early election-night call of Arizona for Biden. It’s ironic that a key part of Fox News’s cascade toward creating space for the Dominion claims was a brash prediction that ended up being correct.
The network was the first to call Arizona for Biden on the night of the election, nearly completely closing the door on Trump’s path to reelection. Recognizing that, the call sparked widespread outcry within the White House. Multiple people connected to the administration reached out to Fox to complain.
They should have. The call was too early and predicated on bad data. That Biden managed to eke out a narrow win was not vindication of the call itself. It was, instead, a lucky escape.
Thanks in part to non-data-driven outcry from Trump, the early call was pilloried by Fox News’s audience. Right-wing competitors to Fox News amplified the criticism. Dominion’s filing documents some of the internal consternation.
Fox’s Chief White House Correspondent told Sammon and FNC President Jay Wallace, “we are taking major heat over the AZ call … Our viewers are also chanting ‘Fox News sucks’, something I have never heard before.” … internal Fox emails [state] “Holy cow, our audience is mad at the network,” and “They’re FURIOUS”
From election night on, Fox News suddenly found itself playing defense against its pro-Trump base.
The rise of an alternative. That created space for competitors, most notably Newsmax.
Newsmax had existed for a while before the 2020 election, but Fox News’s sudden unpopularity and its eventual call of the election for Biden boosted the opportunity for a network willing to explicitly and repeatedly hype Trump’s false fraud argument. In an interview with the New Yorker in late November 2020, Newsmax CEO Christopher Ruddy admitted that his network’s fraud content was bearing fruit.
“You know what? At the end of the day, it’s great for news,” Ruddy said. “The news cycle is red-hot, and Newsmax is getting 1 million people per minute, according to Nielsen, tuning into Newsmax TV. I think it’s good.”
Inside Fox, this threat was clearly recognized, according to the documents obtained by Dominion.
“[T]he lack of any meaningful editorial guidance may be a positive for them at least in the short term,” a senior vice president wrote to other Fox executives in November 2020. He noted Newsmax’s willingness to elevate conspiracy websites like Gateway Pundit. “ … This type of conspiratorial reporting might be exactly what the disgruntled [Fox News] viewer is looking for.”
“Do the executives understand how much credibility and trust we’ve lost with our audience?” Tucker Carlson texted his producer in the same time frame. “We’re playing with fire, for real … an alternative like [N]ewsmax could be devastating to us.”
Writing to an outside individual in a message obtained by Dominion attorneys, Fox News’s Dana Perino noted the “RAGING issue about fox losing tons of viewers and many watching — get this — newsmax! Our viewers are so mad about the election calls (as if our calls would have been any different. It’s just votes!)”
“[T]his day of reckoning was going to come at some point,” Perino added — “where the embrace of Trump became an albatross we can’t shake right away if ever.”
Even Fox Corporation chairman Rupert Murdoch weighed in on the threat.
“These people should be watched, if skeptically,” he said of Newsmax. “ … Everything at stake here.”
A willingness to contest with Newsmax for the pro-Trump, pro-fraud audience. So the stage was set.
Fox’s staff on both Fox News and Fox Business fell into a few categories.
There were those hewing to reality, like host Neil Cavuto who cut away from a White House news conference including false claims about fraud. That prompted some internal consternation, with executive Raj Shah — a former member of Trump’s communications team, warning about the threat to the Fox brand, according to messages mentioned in the Dominion filing.
There were those who downplayed the claims about fraud, like Tucker Carlson. Carlson was one of the first people to publicly call out Trump attorney Sidney Powell’s lack of evidence for her wild claims about Dominion, though, according to messages obtained by the company, his private excoriations were much more critical than his on-air one. (Carlson’s on-air comments ended up aiding Dominion in an earlier court fight.)
There were those who rejected the claims in private — but created space for them publicly. Sean Hannity claimed in a deposition that he “did not believe [Powell’s claims] for one second,” for example, but he nonetheless hosted her and allowed her to share her claims, even after Carlson called her out.
Then there were those who appear as though they may have actually believed the nonsensical allegations — or, at least, offered few qualms. The Dominion filing isolates host Maria Bartiromo as particularly important in having elevated Powell’s claims. But Bartiromo’s engagement in the effort to bolster Trump’s claims went well beyond that. At the end of November 2020, she hosted Trump for a lengthy conversation in which he presented unfounded claims of fraud without any pushback.
Fox hosts and executives were sympathetic to keeping Trump in power. Remember Stephanie Grisham’s comment about the Trump administration “[taking] what we were saying and disseminat[ing] it?” One senior vice president warned another executive that Bartiromo had "[Republican] conspiracy theorists in her ear and they use her for their message sometimes.”
The overlap with politics here is inescapable. Sean Hannity was an overt supporter of Trump; at one point shortly after the election an executive worried about his interest in touting Trump’s allegations according to messages obtained by Dominion: “I think Sean will see the wisdom of this track eventually, but even this morning he was still looking for examples of fraud.”
And then there is Rupert Murdoch. In the quote above about how “everything is at stake” in the network’s fight with Newsmax, the Fox chairman also offered a path forward for his team.
“Trump will concede eventually,” he said in that same message, “and we should concentrate on Georgia, helping any way we can.”
Unquestionably meaning the Georgia runoff elections for the Senate — with the “help” presumably aimed at boosting the Republican candidates or getting their viewership to turn out to vote.
Being the pro-Republican network has been good for Fox’s business, given that it helps the network own a significant chunk of American cable-news viewers. Further downstream, it is also why the company faces this massive, dangerous threat from Dominion.