Lawyers for Fox News and the voting equipment company Dominion faced off in a Delaware courtroom on Tuesday in the latest phase of Dominion’s closely watched $1.6bn defamation suit against the media company for spreading election lies.
Both sides offered dueling narratives of Fox’s liability for spreading false information. The network presented outlandish claims about Dominion while knowing it was false, lawyers for Dominion said. Fox’s lawyers, by contrast, said that the network was merely airing newsworthy claims by the former president that any reasonable viewer would have understood to be allegations. The judge overseeing the case unexpectedly extended the hearing to Wednesday to give both sides more time to make their case.
Erin Murphy, a lawyer representing Fox, also said that the network would not try and prove that the outlandish claims about Dominion rigging the 2020 were true as part of its defense.
The case has attracted much attention because it represents one of the most aggressive efforts to hold any party accountable for spreading election misinformation in the United States, when Donald Trump attempted to overturn the results of the 2020 presidential election. His lies included baseless conspiracy theories about Dominion voting machines.
Court filings leading up to the hearing have produced stunning internal messages showing that prominent Fox hosts, including Tucker Carlson, Sean Hannity and Laura Ingraham, privately doubted the far-fetched allegations about Dominion even as the network continued to air them.
Rupert Murdoch, the chief executive of Fox Corporation, said in his deposition that Fox News hosts “endorsed” the lie of a stolen election. Murdoch also acknowledged he personally could have done more to stop the airing of false claims, but did not.
Both sides made their case to Eric Davis, a Delaware superior court judge overseeing the case, to rule in their favor ahead of a trial. Whatever Davis rules after the hearing, in what is called a summary judgment, will set the scope of a trial scheduled in mid-April, though the parties could reach a settlement before then. The hearing also offered a preview of the arguments and evidence that lawyers would make at trial.
At the center of the case is Fox’s decision to air a number of false claims about Dominion after the 2020 election as Donald Trump and his allies tried to overturn the result.
Those claims included allegations that Dominion rigged the 2020 election by manipulated vote tallies, that it was owned by a Venezuelan company and was fixing the election for Hugo Chávez, and that it paid kickbacks to government officials. Fox knew those allegations were demonstrably false, Dominion lawyers say, and chose to broadcast them anyway to pander to its conservative audience.
Justin Nelson, a lawyer representing Dominion, spent around an hour on Tuesday running through a litany of internal Fox messages showing how network hosts, producers and top executives all knew the claims about Dominion were false and nevertheless aired them. That evidence is key because Dominion must prove that Fox knew the statements were false or acted with blatant disregard to the truth.
Nelson’s presentation opened with several screenshots of text messages from Carlson in which the Fox News host himself called the claims the network was making about Dominion “reckless”. Nelson also displayed several text messages from Carlson in which the anchor said Sidney Powell, a Trump lawyer who came on the air repeatedly to spread false claims, was a liar and called her vulgarities.
“Unlike every other single defamation case, we have in their own words the fact that they knew it was false. Or in some cases that they were recklessly [disregarding] the truth,” Nelson said.
Nelson also walked through text messages and emails from well-known Fox hosts, including Carlson, Hannity, Maria Bartiromo, Lou Dobbs, Jeanine Pirro and Ingraham, showing there was at least one person involved with each of their shows who knew the claims about Dominion were false. He offered evidence that Murdoch and his son Lachlan Murdoch, the top Fox executives, were aware of the false claims and did nothing to stop them.
By mid-November, Fox News’ internal factchecking operation, called “the brain room”, had factchecked outlandish claims about Dominion and had debunked them, according to Nelson’s presentation. Dominion also sent more than 3,000 communications to employees at the network correcting the record about false claims, prompting one employee to joke in an email that he had the company’s “setting the record straight” email tattooed on his body.
Fox was so intent on broadcasting false claims about Dominion because it was concerned about losing viewers, who were angry about the 2020 election results and Fox’s decision to call it for Joe Biden, to a competing network, Newsmax. Nelson showed text messages from the Fox News CEO, Suzanne Scott, complaining about the network’s factcheck of a false Dominion claim and saying it was bad for business.
Rodney Smolla, another lawyer representing Dominion, took aim at Fox’s argument that the network’s statements were protected by the first amendment and because they were newsworthy. He noted that Fox had made people like Sidney Powell, Mike Lindell and Rudy Giuliani household names by giving them a platform. That platform, he argued, allowed them to do “exponentially more damage”.
Murphy, a lawyer representing Fox, spent much of her argument Tuesday rebutting the idea that Fox viewers would have understood the claims about Dominion as facts. She pointed out that many of the claims Dominion challenged were made by guests on air and that Fox News hosts were probing them for newsworthy answers.
“We never reported that those things were true, we only presented viewers with the true fact that those were allegations being leveled,” she said.
She also said that Dobbs’ decision to promote a press conference where Powell made outlandish claims was akin to CSPAN placing video of the event on its website.
It prompted Davis to cut in and ask whether she was asking whether Dobbs, known as a very conservative host whose opinion bleeds into his show, was akin to CSPAN, which is staunchly neutral, prompting some laughter in the courtroom. Murphy said she acknowledged they were both different, but were entitled to promote the allegations under the same principles.
US law sets a high bar in defamation cases, requiring plaintiffs to show a news organization acted with “actual malice” or knew that a statement was false or acted with reckless disregard to the truth.
“Dominion has gotten its headlines, and journalists everywhere will now think twice about covering the most important news of the day for fear of punitive defamation suits,” lawyers for Fox wrote in their filing.
“But this effort to publicly smear a media organization just for having the temerity to cover and comment on allegations being pressed by the sitting President of the United States should be now recognized for what it is: a blatant violation of the First Amendment.”
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