Defamation is hard to prove. Does Dominion have a case against Fox?

Recently released court filings are providing a window into a lawsuit filed by Dominion Voting Systems against Fox News and its corporate owner, set to go to trial in April.

Dominion alleges defamation by Fox, which aired baseless claims by President Donald Trump and his allies about Dominion’s voting machines used in the 2020 election.

Court documents indicate that Fox executives knew the claims were false but chose not to intervene for fear of losing viewers who believed them. Fox has denied defamation and called its coverage of election-fraud allegations protected free speech. 

What is the basis for Dominion’s defamation lawsuit? 

The Denver-based company, which supplies voting machines to 28 states, became a target after the Nov. 3, 2020, election. Pro-Trump activists claimed that Dominion had manipulated vote counts to make Joe Biden the winner. President Trump amplified these claims, tweeting on Nov. 12 that Dominion had “deleted” 2.7 million votes for him. His legal advisors, Rudy Giuliani and Sidney Powell, claimed to have proof of a criminal conspiracy by Dominion and of links to Venezuela’s socialist dictatorship. 

The company refuted all these allegations, as did U.S. election officials who used the machines. There is no evidence that any votes cast on Dominion machines or software were manipulated to change the outcome of an election that Mr. Biden won by narrow margins in swing states. 

Fox News, the most-watched cable news channel, gave ample airtime to Mr. Trump’s allies to question the validity of the 2020 election. Both Mr. Giuliani and Ms. Powell appeared daily on prime-time shows where they accused Dominion of flipping votes to Mr. Biden. 

Dominion says that Fox’s airing of falsehoods has damaged its business. The company has lost contracts in some states and faced pushback in others where officials cited 2020 fraud conspiracies as a reason not to use its technology. Several employees have also faced threats. 

Dominion has also sued Newsmax, a competitor to Fox that tried to outflank it in amplifying 2020 election-fraud conspiracies. This competition weighed on Fox hosts and executives, who worried about losing viewers to Newsmax if they didn’t lean into the conspiracies, according to depositions and internal communications made public in court filings.  

As the preeminent conservative news outlet, Fox is a highly symbolic target. Its efforts to appease aggrieved Trump voters in 2020 – to show “respect” to the audience, as executives emphasized – must be understood in this context, wrote New York Times columnist David French. Fox is “no mere source of news. It’s the place where Red America goes to feel seen and heard.” 

The court filings suggest a strong disconnect between what Fox was broadcasting, largely uncritically, about alleged voting-machine fraud and what producers, hosts, and executives were saying internally about the allegations and the individuals who were making them. 

In a deposition, Rupert Murdoch, the chairman of Fox Corp., admitted that some Fox presenters had endorsed what he called “really crazy stuff” and that he regretted not intervening. Tucker Carlson and other top-rated hosts privately disparaged Ms. Powell, in particular, and even called her a liar. Still, she continued to appear on prime-time shows to speak about Dominion. And when a Fox reporter tried to fact-check Mr. Trump’s tweet about Dominion deleting his votes, Mr. Carlson told fellow hosts Sean Hannity and Laura Ingraham that the reporter should be fired.

“Please get her fired. Seriously. ... It’s measurably hurting the company. The stock price is down. Not a joke,” he wrote in a text.

Mary Altaffer/AP/File

Rupert Murdoch appears at the Herman Kahn Award Gala, Oct. 30, 2019, in New York. The chairman of Fox Corp. admitted in a deposition that some Fox presenters had endorsed what he called “really crazy stuff” after the 2020 election, and that he regretted not intervening.

What is Fox’s defense and how robust are free speech protections? 

Fox’s lawyers say that the network was covering newsworthy events – a U.S. president disputing the results of an election – and that as a news organization it didn’t endorse the views of the public figures who appeared on its shows. 

News organizations enjoy broad First Amendment protections, and defamation cases rarely make it to trial. Under a standard set by a 1964 Supreme Court ruling, plaintiffs must show that a news outlet knowingly aired falsehoods or showed a reckless disregard for the facts. 

The Supreme Court wanted to allow for “innocent mistakes” so that public debate wouldn’t be chilled by libel suits, says George Freeman, a former in-house counsel at The New York Times who directs the Media Law Resource Center. “It’s a hard test, but it’s a hard test deliberately,” he says. “You have to prove that something nefarious was in the editor or reporter’s mind.”

In its filings, Fox News has derided “cherry picking” by Dominion of what Fox staffers said about Mr. Trump’s allegations. It argues that skepticism among some employees doesn’t mean that that organization writ large was at fault in airing false statements about Dominion. 

This line of defense is likely to play out at trial, says Jane Kirtley, a professor of media ethics and law at the University of Minnesota. Even if Fox executives didn’t buy Mr. Trump’s claims but wanted to protect their ratings, opinion hosts could still claim that they were keeping an open mind about Dominion and election fraud. 

What may prove harder for Fox to defend, says Ms. Kirtley, is that Dominion said it sent more than 3,600 emails and other communications to Fox to correct the record, but that Mr. Trump’s allies were invited to keep repeating their falsehoods, day after day. “If this had happened once we never would have had this lawsuit. It's the fact that it went on repeatedly,” says Ms. Kirtley. Fox’s hosts “knew what these people were going to say.” 

What is the broader significance of the case? 

The case has become something of a proxy for the 2020 election dispute and the spread of misinformation that led up to the Jan. 6 attack on the U.S. Capitol. Opponents of Mr. Trump, including many Democrats, would like to see a reckoning for those who pushed his false narrative – even if that means seeing a private company prevail over a news network.

At the same time, the case could have consequences for press freedom if Fox appeals an unfavorable ruling and a conservative-dominated Supreme Court decides to revisit the 1964 standard for defamation, says Ms. Kirtley. That possibility makes her and other First Amendment scholars uneasy.

“I wish this case would settle. I’d rather it never had an opportunity to go to the Supreme Court,” she says. 

Dominion is seeking $1.6 billion in damages from Fox. While victory for Dominion wouldn’t put Fox out of business, it would be costly. It underscores that a case freighted with political baggage is, at its core, about commercial interests on both sides.

For Fox, reporting too critically on Mr. Trump’s baseless fraud claims was demonstrably bad for ratings, since many viewers were drawn to a rigged-election narrative, even if the facts didn’t support it.

For Dominion, the fact that millions of Trump voters believe the election was rigged – a belief that Fox promoted relentlessly – has made it harder to do business in Republican-run jurisdictions. 

In his deposition, Mr. Murdoch was asked why Fox hosts kept booking Michael Lindell, a pillow retailer and Trump backer who promoted false theories about the election, as a guest. (Dominion has separately sued Mr. Lindell for defamation.) Mr. Murdoch pointed out that Mr. Lindell spent a lot of money to air pillow commercials on Fox.

“It is not red or blue,” Mr. Murdoch said. “It is green.”