Over the past three weeks, a trickle, trickle, trickle of revelations has exposed widespread alarm and disbelief within Fox News in the days following the 2020 presidential election, as the network became a platform for some of the more insidious lies about widespread voter fraud. These revelations are the most damning to rock Murdoch’s media empire since Britain’s wiretapping scandal more than a decade ago.
The headlines have drawn attention. Tucker Carlson, an outspoken supporter of former President Donald J. Trump’s populist message, was caught insulting Trump: “I passionately hate him,” he wrote in a text message. Laura Ingraham and Sean Hannity belittled their colleagues in their network’s news division. And Rupert Murdoch said that he longed for the day when Trump was irrelevant.
These examples and many more, revealed in personal emails, text messages and testimonials made public as part of Dominion Voting Systems’ $1.6 billion defamation lawsuit against Fox News, are shameful. But whether they pose a serious legal risk to Fox in that case is much less clear.
The messages that generated some of the biggest headlines may never be presented as evidence when the case goes to trial next month, according to lawyers and jurists, including several directly involved in the case. Fox is expected to ask a judge to exclude certain texts and emails because they are not relevant.
But Fox’s most powerful legal defense is the First Amendment, which allows news organizations wide leeway in covering issues and statements made by elected officials. In court, Fox’s lawyers argued that the network was merely reporting what Trump and his allies were saying about Dominion’s fraud and machines, without endorsing those falsehoods.
Media law experts said that if a jury finds that to be true, which is not a far-fetched result, they said, especially if the network’s lawyers can show that their hosts did not present the allegations as fact, then Fox could win.
“I think the case will really come down to a jury deciding whether or not the company or commenters endorsed; that’s really the key question,” said George Freeman, a former New York Times attorney who is now executive director of the Media Law Resource Center, which helps news organizations with legal issues.
“I think it gives Fox a fighting chance,” he added.
Despite the ways Fox could prevail with a jury, legal scholars say Dominion’s case is exceptionally strong.
Dominion’s lawyers argue that the claims made by Fox hosts and guests about its machines and their alleged role in a non-existent conspiracy to steal votes from Trump were anything but neutral and dispassionate reporting.
“Truth and shared facts form the basis of a free society, even more so here,” his lawyers said in a brief filed with the court on Thursday. “The misconception that Dominion rigged the 2020 presidential election undermines the very core of democracy.”
It’s rare for First Amendment lawyers to side with a media company. But many of them have done just that, arguing that a ruling against Fox will send an important message: The law does not protect those who peddle disinformation. And it would help dispel the notion, First Amendment experts said, that defamation laws should be rewritten to make it easier to win libel suits, as Trump and other conservatives, including Justice Clarence Thomas, have suggested.
In its most recent filings, Dominion argued that the law was more than adequate to hold Fox liable.
“If this case does not qualify as libel, then libel has become meaningless,” Dominion argued in a legal filing made public Thursday.
But legal experts said the case would go up or down depending on how a jury viewed heightened concerns about the health of American democracy. Rather, they said, Dominion’s challenge will be to argue persuasively for something much more specific: that Fox News either knowingly broadcast false information or was so reckless as to overlook obvious evidence pointing to the falsehood of Dominion conspiracy theories.
While coverage of the case has largely focused on disparaging comments that star hosts and top network executives made in private, about Trump, his lawyers, and each other, those comments could only help Dominion’s case if they pointed to a deeper rot inside. Fox, namely that it cynically elevated the false stories about the Dominion machines because its ratings were suffering.
“When I see the headlines that are mostly about Tucker Carlson or Sean Hannity, those are conversations that the litigation was designed to stimulate,” said RonNell Andersen Jones, a First Amendment scholar and law professor at the University of Utah.
“At least some of that evidence will be important from an atmospheric point of view,” added Ms Andersen Jones. But what will be most important to the outcome of the case, she said, is “what drove the closer decisions in the individual shows.”
Fox’s lawyers could ask the judge, for example, to block the jury from seeing most of Murdoch’s statement on the grounds that he was the president of the company and did not have a direct role in the decision-making program level. And they plan to argue that Fox’s coverage of the 2020 election aftermath should be considered as a whole, including hosts and guests who insisted there was no evidence of widespread fraud.
And the more Fox lawyers can show instances in the coverage where their hosts refuted or framed the allegations as unproven, the stronger their case will be.
An attorney working on Fox’s defense, Erin Murphy, said Dominion did not “want to talk about the shows where there was a lot of commentary coming from different perspectives.”
Especially when those shows were the “highest rated and most mainstream,” Murphy added.
Dominion would have the strongest legal footing, defamation experts said, as long as it could point to specific examples in which individual Fox employees responsible for a show admitted that fraud claims were false or overlooked evidence that those claims, and the people who make them, were unreliable. .
Dominion cites only one episode of Mr. Carlson and Mr. Hannity as defamatory: Mr. Carlson’s interview with Mike Lindell, the CEO of MyPillow, on January 26, 2021, and Mr. Hannity’s interview with Sidney Powell , a lawyer who made some of the most outrageous allegations of fraud, on November 30, 2020.
Dominion’s defamation claims against three much darker shows with much lower ratings are more substantial and amply documented: “Sunday Morning Futures With Maria Bartiromo” and the now-canceled “Lou Dobbs Tonight,” both of which aired on Fox Business in 2020. ; and “Justice With Judge Jeanine,” which was Jeanine Pirro’s Saturday night talk show on Fox News before the network canceled it and promoted Ms. Pirro to a regular slot on “The Five,” a weekday roundtable talk show.
Especially damaging, legal experts said, is the evidence against Ms. Bartiromo. Dominion accused her of recklessly ignoring evidence that a key source of Ms Powell, who appeared several times on Ms Bartiromo’s show, was mentally unstable, a “kook” by the source’s own admission.
In one email, the full text of which was released last Tuesday along with thousands of pages of statements and private messages from Fox employees, it is from someone claiming to be a technology analyst named Marlene Bourne. Ms. Powell forwarded Ms. Bourne’s email to Ms. Bartiromo on the evening of November 7, and Ms. Bartiromo forwarded it to her producer.
In the email, Bourne describes numerous conspirators in a plot to discredit Trump, including some who had been dead for years, such as Roger Ailes, the former CEO of Fox News. She writes that she is able to “time travel in a semi-conscious state” and that when she is awake she can “see what others don’t see and hear what others don’t hear”. She also says that she was beheaded and “looks like I got shot in the back” once after tipping off the FBI.
“If we really focus on where the strongest evidence is,” Ms Andersen Jones said, “it’s the Wackadoodle email. Because the real question is whether you were subjectively aware of the probable falsehood of what you were proposing in your program.
