Fox News Starts Its Dominion Defamation Trial With Several Strikes Against It

Pretrial rulings recognized the falsity of the election-fraud claims that the outlet aired and rejected three of its defenses.

In a trial that begins on Monday, Dominion Voting Systems will seek to hold Fox News liable for airing statements that falsely implicated the company in a massive fraud that supposedly delivered a phony victory to Joe Biden in the 2020 presidential election. That task will be easier thanks to pretrial rulings that recognized the falsity of those statements and rejected three Fox defenses.

"The question of falsity is whether the content of the allegations was true, not whether Fox truthfully republished the allegations," Delaware Superior Court Judge Eric M. Davis said when he rejected Fox's motion for summary judgment on March 31. "Through its extensive proof, Dominion has met its burden of showing there is no genuine issue of material fact as to falsity….The evidence developed in this civil proceeding demonstrates that [it] is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true."

As Davis noted, Fox guests and hosts falsely claimed that "Dominion committed election fraud"; that it "manipulated vote counts through its software and algorithms"; that it was "founded in Venezuela to rig elections for dictator Hugo Chavez"; and that it "paid kickbacks to government officials who used [its] machines in the Election." Those statements are "defamatory per se," Davis ruled, because they "strike at the basic integrity of [Dominion's] business" and "seem to charge Dominion with the serious crime of election fraud."

Fox News, relying on case law in its home state of New York, argued that its airing of false claims about Dominion was protected by a "neutral report privilege" that applies to coverage of newsworthy allegations. Since the president himself was claiming that Dominion had helped Biden steal the election, Fox said, it made sense to interview his representatives, such as lawyers Sidney Powell and Rudy Giuliani, about that conspiracy theory. But Davis concluded that New York's highest court had rejected the privilege that Fox asserted.

Fox also argued that its presentation of Powell and Giuliani's allegations qualified as a "fair report" about judicial proceedings. That privilege, Davis ruled, "fails to shield Fox from liability."

Davis noted that "most of the contested statements were made before any lawsuit had been filed in a court." Just one of the statements, made on the November 30, 2020, broadcast of the Fox Business show Lou Dobbs Tonight, "references an official proceeding, and therefore only that allegation can be tested for the privilege," Davis wrote. And "because the fair report privilege only applies to substantially accurate reports about proceedings, not the underlying facts, the statement fails."

During that show, Davis noted, Powell "alleged that 'all the machines are infected with the software code that allows Dominion to share votes' and called it 'the most massive and historical egregious fraud the world has ever seen.' Because the statements do not concern official proceedings, the fair report privilege should not apply."

Finally, Fox argued that statements by hosts like Dobbs, who repeatedly lent credence to Powell's claims, were constitutionally protected expressions of opinion. Not so, said Davis. In an appendix, he went through all the relevant broadcasts, showing that statements Fox described as opinions included assertions of fact or were based on supposed evidence that neither Powell nor Giuliani ever produced.

"The Statements were capable of being proven true, and in fact the evidence that would prove the Statements was discussed many times (but never presented)," Davis wrote. "Moreover, the context supports the position that the Statements were not pure opinion where they were made by newscasters holding themselves out to be sources of accurate information." He added that "it appears oxymoronic to call the Statements 'opinions' while also asserting the Statements are newsworthy allegations and/or substantially accurate reports of official proceedings."

The main issues that Davis left for the jury are 1) who was responsible for airing the false and inherently defamatory statements about Dominion and 2) whether they acted with "actual malice," meaning they knew the statements were false or recklessly disregarded that likelihood. Dominion argues that Fox executives, producers, and hosts all bear some responsibility and that they either knew or should have known there was no factual basis for Powell and Giuliani's claims.

Davis said those are matters of fact to be determined by the jury. But he also said cases cited by Fox "do not establish a rule that the only relevant inquiry is to the actual malice of the speaker and not the employees responsible for publication."

As Davis noted, Dominion has presented evidence that many people at Fox were either skeptical of the claims about the company or dismissed them outright. Ten days after the election, Fox's fact-checking "Brainroom" said there was "no evidence of widespread fraud" and "no credible reports or evidence of any software issues." It added that "claims about Dominion switching or deleting votes are 100% false" and called assertions about supposedly deleted Trump votes "mathematically impossible."

Six days later, Fox Corporation Chairman Rupert Murdoch privately called the story "really crazy stuff." That same day in a text conversation with fellow Fox News host Laura Ingraham, Tucker Carlson flatly stated that "Sidney Powell is lying." Ingraham agreed that Powell could not be trusted: "Sidney is a complete nut. No one will work with her. Ditto with Rudy." In a deposition, Fox News host Sean Hannity said he "did not believe" Powell's claims "for a second."

In response to a post-election tweet about "vote dumping" from Maria Bartiromo, fellow Fox News host Bret Baier told Jay Wallace, president and executive editor at Fox News and Fox Business, "none of [it] is true as far as we can tell." In a December 1 email, Baier said Powell's claims "can't be remotely true." Lucas Tomlinson, another Fox reporter, responded that the allegations were "100% not true" and "complete bullshit."

Gary Schreier, second in command at Fox Business, "believed the allegations were false at the time of airing," Davis noted. John Fawcett, an associate producer for Lou Dobbs Tonight, told colleagues that Powell seemed to be "doing lsd and cocaine and heroin and shrooms." In a text to Dobbs, Fawcett suggested that Powell "could be losing her mind." He noted that her story "doesn't make sense" and added, "I just don't think she is verifying anything she is saying." Tiffany Fazio, executive producer of Hannity's show, called Giuliani's account of systematic election fraud "comic book stuff."

Dominion will try to persuade the jury that executives and producers who made such statements should be held responsible for allowing Powell and Giuliani to spout defamatory nonsense. It also will argue that the hosts who gave them a forum should have known better.

"In response to text messages and emails of various FNN [Fox News Network] employees questioning the veracity of the claims," Davis noted, "FNN has generally the same answer to all: FNN was waiting for the evidence. Because the election results would be verified in mid-December, FNN employees believed this was an appropriate length of time to wait and see if that evidence came to light."

Fox also argues that Dobbs and Bartiromo, both of whom seemed to accept Powell and Giuliani's tall tale, were true believers. "Ms. Bartiromo testified that she 'cannot sit here and say [she knows] what happened in the election even to this day,'" Davis noted, quoting Fox's lawyers. "Similarly, Mr. Dobbs still believes the election was stolen."

As Fox sees it, the implication is that Dobbs and Bartiromo neither knew the Dominion story was false nor promoted it "with reckless disregard of whether it was false or not." The latter requires that they "entertained serious doubts as to the truth of [the] publication or had a high degree of awareness of [its] probable falsity." And while other employees were less credulous, Fox argues, it was reasonable for them to keep giving Powell and Giuliani a forum until it was clear that they had no evidence to support their claims.

In Fox's telling, that happened by mid-December. But the internal communications highlighted by Dominion suggest the reckoning could and should have come sooner.

"Dominion's lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights," Fox said in an emailed statement today. "While Dominion has pushed irrelevant and misleading information to generate headlines, FOX News remains steadfast in protecting the rights of a free press, given a verdict for Dominion and its private equity owners would have grave consequences for the entire journalism profession."