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4 takeaways from the bombshell Fox News legal filing

Dominion Voting Systems sued Fox News for $1.6 billion on March 26, 2021, for repeated false claims about election fraud made by the network’s hosts and guests. (Video: JM Rieger/The Washington Post)
10 min

We still don’t know whether Fox News and Fox Corporation will ultimately have to pay up for their promotion of the false claim that Dominion Voting Systems machines helped rig the 2020 election. But Dominion’s defamation lawsuit has now come at a significant cost to Fox, in at least one sense, by revealing the ugly inner workings of its 2020 election coverage.

Dominion in a legal filing Thursday laid out extensive evidence uncovered during the discovery process. It reveals that Fox News hosts and executives seemed to understand the various “stolen election” claims being promoted by Donald Trump and his team were false or baseless, and privately derided them.

But they largely declined to say that on the air, worrying that doing so and alienating Trump and viewers would be bad for business. It is one of the most revealing looks at what happened behind the scenes at the country’s highest-rated cable news channel and most important conservative media outlet.

“There will be a lot of noise and confusion generated by Dominion and their opportunistic private equity owners,” a Fox News spokesperson said in a statement, “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.” The statement also said the filing contained “cherry-picked quotes stripped of key context.” Below are some takeaways from the filing.

What Fox News hosts said about Dominion and voting machines

1. How leaders at Fox viewed their business model

The filing is rife with examples of Fox News hosts and executives worrying that departing from Trump’s line, or questioning his team’s claims, might hurt their business model. They worried especially about Newsmax, which was less discerning in its coverage of Trump’s election conspiracy theories and saw a ratings boom at the time. The Fox executives acknowledged the shoddiness of Newsmax’s 2020 election coverage but also expressed concern the rival network was taking its viewers.

On Nov. 10, Fox News president Jay Wallace texted, “The Newsmax surge is a bit troubling” and “truly is an alternative universe when you watch, but it can’t be ignored.” On Nov. 16, Fox Corporation Chairman Rupert Murdoch emailed, “These people should be watched, if skeptically,” adding, “We don’t want to antagonize Trump further, but Giuliani taken with a large grain of salt. Everything at stake here.”

On Nov. 18, Fox executive Ron Mitchell put it more bluntly while noting that Newsmax was citing sources like the conspiracy theory website Gateway Pundit: “This type of conspiratorial reporting might be exactly what the disgruntled FNC viewer is looking for.”

Throughout, Fox seemed to recognize that it could not question fraud claims too thoroughly. After Rudy Giuliani and Sidney Powell’s news conference full of false and baseless claims on Nov. 19, Mitchell spoke derisively about their statements: “Will you be mentioning the international crime conspiracy to steal the election featuring Soros, Maduro, Chavez, Antifa, Cuba, and China?” he asked rhetorically. But then he lamented that “those clowns put us” in “an awkward place where we’re going to need to thread the needle.”

Bill Sammon, then Fox News senior vice president, added to the laments at one point, saying, “It’s remarkable how weak ratings” make “good journalists do bad things.” The fear of Trump damaging the network was evident throughout.

After Trump and his allies criticized Fox extensively for calling Arizona for Joe Biden after Election Day, Fox went into damage control. What Trump is “good at is destroying things,” Tucker Carlson noted at one point. “He’s the undisputed world champion of that. He could easily destroy us if we play it wrong.”

2. Reprimands for fact-checking the claims

The filing repeatedly shows Fox News hosts and superiors objecting to how their colleagues fact-checked the Trump team’s claims. In one example, host Neil Cavuto cut away from White House press secretary Kayleigh McEnany, who had claimed Democrats took positions on voting issues because they were “welcoming fraud” and “illegal voting.”

“Whoa, whoa, whoa,” Cavuto said, adding, “Unless she has more details to back that up, I can’t in good countenance continue showing you this. I want to make sure that maybe they do have something to back that up.” The filing says Fox News executive Raj Shah’s team notified senior leadership that Cavuto’s actions amounted to a “Brand Threat.” The next day, another executive, Porter Berry, noted Newsmax was going after Cavuto and said, “They are just whacking us. Smart on their part.”

In another instance, reporter Kristin Fisher fact-checked Giuliani and Powell’s Nov. 19 news conference, saying, “So much of what he said was simply not true or has already been thrown out in court.” She correctly noted the claims did not line up with what Trump lawyers were saying in court and that they had failed to provide evidence.

The segment drew extensive criticism from Trump allies, including on Newsmax. Fisher said afterward she was reprimanded by her boss, Bryan Boughton, who “emphasized that higher-ups at Fox News were also unhappy with it” and that she “needed to do a better job of — this is a quote — ‘respecting our audience.’”

Around the same time, Fox host Dana Perino noted on-air, rather presciently, that Dominion could sue over the Trump team’s claims. Fox News chief executive Suzanne Scott responded to both the Fisher and Perino incidents by noting that the “crazies” were “looking for and blowing up all appearances of disrespect to the audience.” She said, “The audience feels like we crapped on” them “and we have damaged their trust and belief in us,” adding, “We can fix this but we cannot smirk at our viewers any longer.”

The filing also repeatedly shows Fox worried about how being too hard on the claims would alienate its audience. Another case involves Fox reporter Jacqui Heinrich, who tweeted a fact check of a Trump tweet about Dominion in which he mentioned Fox News host Sean Hannity and Fox Business host Lou Dobbs.

Heinrich noted that “top election infrastructure officials” rejected the claim. Carlson told Hannity to get Heinrich fired: “It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.”

This one is a little more complicated. The filing notes Heinrich later deleted the tweet. But she replaced it with another, very similar one. It appears the first tweet responded to Trump specifically mentioning Hannity’s and Dobbs’s shows promoting the claim.

Her replacement tweet responded to a different Trump tweet, referring to coverage by One America News instead. So in this case, it is not clear the issue was so much her fact check per se, so much as her seeming to question the coverage on Hannity’s and Dobbs’s shows.

3. Deriding Giuliani and Powell along with hosts

The filing also makes clear that Fox acknowledged, broadly speaking, that the likes of Giuliani and Powell were not to be taken seriously. But such figures still got platforms on the network, as did certain hosts, even as some executives people at the media company derided their coverage.

In addition to saying Giuliani should be taken with a “large grain of salt,” Murdoch called his Nov. 19 performance “Really crazy stuff. And damaging.” On Nov. 11, Hannity said, “Rudy is acting like an insane person.” The evening of Nov. 19, Giuliani again appeared on Hannity’s show, with Hannity referring to “thousands of ballots out of thin air” a “couple weeks after the election, which should concern everybody.”

A Dobbs producer on Nov. 18 referred to “keeping in mind” Giuliani’s “insanity lately.” Dobbs’s show interviewed Giuliani repeatedly over the next week, including that night. Two days afterward, Fox executive David Clark called it “Crazy town” and said he was glad host Jeanine Pirro did not interview Giuliani and Powell on-air.

The reviews of Powell were even harsher. Ingraham called her a “complete nut” on Nov. 18. Shah called her claims “outlandish” on Nov. 23. Carlson called her a “lunatic” and a “Crazy person” earlier that month. He added that she was an “unguided missile” and again, perhaps presciently given the current circumstances, “dangerous as hell.” (Carlson, unlike others, applied on-air skepticism to Powell’s claims.) Powell later appeared on Hannity’s show on Nov. 30.

Fox executives also seemed to understand their hosts were too willing to broadcast wild claims. One said on Nov. 8 of Maria Bartiromo: “The problem is she has gop conspiracy theorists in her ear and they use her for their message sometimes.”

Executive producer Jerry Andrews on Nov. 22 remarked that Pirro was “just as nuts” (as what, it is unclear). Another employee referred to “crazy Tucker and crazier Hannity.” And perhaps the most colorful quote belongs to Wallace. The Fox News president said of Dobbs that “the North Koreans do a more nuanced show.”

Dobbs, whose broadcasting of the Dominion claims helped spur the lawsuit, was dropped by the network in February 2021. That move came one day after he was named in a separate lawsuit filed by election software company Smartmatic.

4. The full picture of the dual posture at Fox

This, of course, is not the first time a spotlight has fallen on Fox’s handling of this period. During the hearings on the Jan. 6, 2021, riot at the Capitol, text messages emerged in which Fox hosts were much more critical of Trump’s actions surrounding that day than they ever were on the air.

They privately derided Trump for his conspiracy theories and for his delayed response when the riot began but showed little if any such concern to viewers. They recognized Trump was the catalyst for the Capitol riot in a way they publicly discounted or ignored. It is no secret that the inner workings of any organization, news or otherwise, can be untidy when they come to light. That has been the case with past defamation suits against media companies.

But the still emerging picture of Fox is one of an organization that was scared to tell its viewers the full truth and instead internalized what it saw as the business value of airing false and baseless claims from noncredible actors, whether its own staff had explicitly endorsed them or not. And its product reflected that posture in a way that has now put it in legal and financial jeopardy.