Category: National

Dominion, which makes voting machines, is accusing the conservative network of knowingly spreading disinformation about its products in the days after the 2020 election to appease an audience hungry for conspiracy theories. It was a craven bid for profit, Dominion says, and the myth it fueled ultimately led to the insurrection at the U.S. Capitol.

That Fox’s allegations about Dominion were dead false has already been decided — they were, according to Judge Eric Davis, who is presiding over the case in Delaware Superior Court. What Dominion must prove now is a tougher legal challenge. The company will put Fox’s key decision-makers on the stand and ask 12 jurors to assess their state of mind in November and December 2020.

“It isn’t enough to show that Fox made a conscious decision to amplify election denialism generally in its coverage,” said RonNell Andersen Jones, a former newspaper reporter who is now a First Amendment expert at the University of Utah. “Dominion has to show that the people who were responsible for creating (or platforming) the false statements about Dominion had knowledge that those statements were false. It’s about connecting the dots.”

After the 2020 election, Dominion’s suit contents, Fox News viewers were abandoning it for fringe outlets like Newsmax that were willing to indulge the most dangerous and deluded claims about why Donald Trump lost. Initially, Fox had actually stood out from the MAGA pack by suggesting the incumbent president was doomed when its Decision Desk called Arizona for Joe Biden. But the network soon changed course, the lawsuit says, embracing falsehoods about Dominion that left the company’s brand in tatters and its employees fearing for their lives.

Payoffs to Georgia officials. Corporate ties to the Hugo Chavez regime. Shady remote operators switching votes to push Biden over the top.

It is “CRYSTAL clear” that those allegations were false, Davis declared in a pre-trial ruling last month. So the jury won’t decide that question. But that’s far from the end of the case.

Libel suits are notoriously difficult to win in the United States, thanks to the New York Times v. Sullivan decision of 1964, in which the Supreme Court ruled that it wasn’t enough for a public figure — in this case, Dominion — to show a news organization published something false about them to win a defamation case. Instead, accusers have to show “actual malice”: a legal term meaning that the outlet either knowingly published a falsehood or published one with reckless disregard for the truth. It’s an inherently subjective question that focuses on what the publisher actually believed.

What’s remarkable about the Dominion case is that, thanks to incredibly juicy pre-trial discovery unearthing caches of messages among Fox employees, it’s already fairly clear that many of them at the very least had their doubts about what their network was peddling.

There were Tucker Carlson’s candid characterizations of “Stop the Steal” attorney-in-chief Sidney Powell, whom he labeled a liar — an “unguided missile” who was “dangerous as hell” and even tantamount to “poison.”

There was a Lou Dobbs Tonight producer who, in January 2021, called Trump attorney Rudy Giuliani “so full of shit” — weeks after Laura Ingraham suggested the ex-NYC mayor was “such an idiot” and Sean Hannity labeled him “an insane person.”

And there was a senior vice president of programming for Fox Business, the network that aired Dobbs’ adamantly anti-Dominion show, referring to Stop the Steal cheerleader and MyPillow CEO Mike Lindell as being “on the crazy train with no brakes.”

And much more. As far as defamation plaintiffs’ attorneys are concerned, this is the stuff dreams are made of.

“It’s hard to get evidence to prove that someone in the media knew something was false. What’s so unusual in this case is that there’s all this evidence,” said Noah Feldman, a Harvard legal historian.

In a statement, a Fox spokesperson said, “Dominion’s lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights. 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.”

Reports of a possible last-minute settlement emerged around the same time that Davis announced a 24-hour delay in the trial late Sunday, pushing the end of jury selection into Tuesday morning. (Opening arguments are expected shortly after the jury is seated.) Among the outlets dangling an 11th-hour resolution was the Wall Street Journal, a crown jewel in Fox News owner Rupert Murdoch’s media empire. Murdoch himself may be called to testify in the trial.

To Andersen Jones, the Utah law professor — who remarked that “this whole litigation is one really interesting season of Succession” — the late settlement scramble was not exactly shocking.

But, she said, Dominion has “made clear that a piece of its litigation goal is public-facing: that it wants Fox to be required to have public accountability for leaning into election denialism.” A trial is probably the best way to make that happen.

In other words, unlike Nixon, who was able to avoid a House impeachment and a Senate trial by resigning, Fox may have just missed out on its last chance to steer out of the courtroom.