In March of 2021, Dominion Voting Systems filed a $1.6 billion defamation lawsuit against Fox News for persistently suggesting that the company’s machines had stolen a rightful victory in the 2020 election from Donald Trump. In dismissing the motion for summary judgment, Delaware Superior Court Judge Eric M. Davis gave unmistakable signals that Dominion’s case, based solely on the publicly available footage, put it in a position far stronger than most public figures seeking redress for defamation.
In just one of dozens of examples cited by the court, Trump’s lawyer Rudy Giuliani managed to spew defamatory lies about both Dominion and its direct competitor Smartmatic inside the span of thirty seconds.
“Dominion is a company that’s owned by another company called Smartmatic, through an intermediary company called Indra. Smartmatic is a company that was formed…by three Venezuelans who were very close to, very close to the dictator, Chávez of Venezuela and it was formed in order to fix elections,” he ranted on November 12, 2020. “That’s the company that owns Dominion….[A]ll of its software is Smartmatic software….So we’re using a…company that is owned by Venezuelans who were close to – were close to Chávez, are now close to Maduro, have a history, they were founded as a company to fix elections.”
“It’s stunning. And they’re private firms and very little is known about their ownership, beyond what you’re saying about Dominion,” agreed Fox host Lou Dobbs, adding that, “The states, as you well know now, they have no ability to audit meaningfully the votes that are cast because the servers are somewhere else and are considered proprietary and they won’t touch them. They won’t permit them being touched.”
All of this is nonsense, of course. And perhaps a company with a different, um, corporate culture would have settled the thing and made this problem go away back in 2021. Instead Fox opted to undergo a two-year colonoscopy of discovery, with Tom Clare of Clare Locke LLP wielding the camera.
Unsurprisingly, he found something.
Yesterday the court unsealed Dominion’s motion for summary judgment, which included a veritable treasure trove of embarrassing texts, emails, and deposition excerpts. Turns out, Fox hosts and their management knew perfectly well that the the election was not “stolen”; that Dominion was not a Venezuelan vote-rigging company; that Rudy Giuliani and Sidney Powell were many, many tacos short of a combo platter; and that allowing Fox’s audience to convince itself of these lies was tearing the country apart. And yet, the motion alleges, Fox made the business decision to continue feeding these lies to its audience in an attempt to stave off competition from rivals such as Newsmax, who made no fig leaf pretense of adhering to any kind of code of journalistic ethics.
The problems started in the early morning hours of November 4 when the network correctly called Arizona for Biden. It took immediate heat from its viewers, who’d been fed months of lies from Trump that the only way he could lose would be if Democrats cheated.
Fox’s management knew full well that Trump had lost. Rupert Murdoch emailed Fox News CEO Suzanne Scott on November 6, acknowledging that it would be “very hard to credibly claim foul everywhere” with Biden pulling ahead in so many swing states, and cautioning that, “if Trump becomes a sore loser, we should watch Sean especially and others don’t sound the same.” But the network reversed course when it became clear that telling its viewers the truth would hurt the bottom line.
“I’ve never seen a reaction like this, to any media company. Kills me to watch it,” Tucker Carlson lamented to Fox CEO Suzanne Scott on November 9. Scott emailed another executive to complain about “the impact to the brand and the arrogance in calling AZ,” and then elevated the issue to Lachlan Murdoch.
“It’s a question of trust the AZ [call] was damaging but we will highlight our stars and plant flags letting the viewers know we hear them and respect them,” the younger Murdoch wrote.
“Yes today is day one and it’s a process,” Scott promised.
Reporting the truth about Biden’s win was pissing off the “talent,” too.
“We worked really hard to build what we have. Those fuckers are destroying our credibility. It enrages me,” Tucker Carlson texted his producer on November 5, warning that getting crosswise with Trump could spell ruin for Fox: “What he’s good at is destroying things. He’s the undisputed world champion of that. He could easily destroy us if we play it wrong.”
On November 7, when the network called the election for Biden, Carlson texted, “Do the executives understand how much credibility and trust we’ve lost with our audience? We’re playing with fire, for real an alternative like newsmax could be devastating to us.”
The brief paints a picture of a network deliberately platforming election lies out of fear that Newsmax might erode its market share. And no one was more aware of the danger than its primetime lineup, who seem to spend their evenings leaving Christmas presents for lawyers in the group chat, where they plotted to get a younger reporter fired for fact checking their election lies on Twitter.
“In one week and one debate they destroyed a brand that took 25 years to build and the damage is incalculable,” Sean Hannity moaned to Carlson and Laura Ingraham on November 12.
“It’s vandalism,” Carlson agreed.
And although Carlson wasn’t willing to put Sidney Powell on his show to spew her lies about Dominion, describing her claims as “shockingly reckless” in the absence of any proof, he did host Mike Lindell to air his equally crackpot election theories. Meanwhile Jeanine Pirro, Maria Bartiromo, and Lou Dobbs were only delighted to give free rein to the Kraken lawyer and Giuliani to spew lies about Dominion unimpeded.
“I know that there were voting irregularities. Tell me about that,” Bartiromo croaked to Powell on November 8, unleashing a torrent of batshittery about Dominion and its dastardly, vote stealing algorithm. What Bartiromo failed to disclose was that the supposed proof supplied by Powell was an email from a source who mused, “Who am I? And how do know all of this? I’ve had the strangest dreams since I was a little girl was internally decapitated, and yet, I live The Wind tells me I’m a ghost, but I don’t believe it.”
Well, there’s falsity, recklessness, and publication. As for actual malice, perhaps the 3,600 communications from Dominion informing Fox that all of this was arrant nonsense might do the trick?
In response, Fox filed its own motion for summary judgment, in which it argued that it had an obligation to cover the sitting president’s allegations of election fraud and asserted that it had given airtime to people arguing that Dominion was not a Venezualan vote-rigging front.
It also issued a statement defending its own journalistic ethics [cough cough] and decrying the assault on the First Amendment posed by Dominion’s law suit:
There will be a lot of noise and confusion generated by Dominion and their opportunistic private equity owners, 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.
And for good measure it filed an anti-SLAPP counterclaim seeking to be made whole for all its legal fees, something which should go over well with Judge Davis, who already ruled that Dominion made out a cognizable defamation claim in its pre-discovery complaint.
If neither motion for summary judgment is granted, the parties will go to trial in mid-April. Be there, will be wild.
Liz Dye lives in Baltimore where she writes about law and politics