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Lawsuit Against Fox Is Shaping As much as Be a Major First Amendment Case


Within the weeks after President Donald J. Trump lost the 2020 election, the Fox Business host Lou Dobbs claimed to have “tremendous evidence” that voter fraud was guilty. That evidence never emerged but a latest perpetrator in a supposed scheme to rig the election did: Dominion Voting Systems, a maker of election technology whose algorithms, Mr. Dobbs said, “were designed to be inaccurate.”

Maria Bartiromo, one other host on the network, falsely stated that “Nancy Pelosi has an interest on this company.” Jeanine Pirro, a Fox News personality, speculated that “technical glitches” in Dominion’s software “could have affected 1000’s of absentee mail-in ballots.”

Those unfounded accusations are actually among the many dozens cited in Dominion’s defamation lawsuit against the Fox Corporation, which alleges that Fox repeatedly aired false, far-fetched and exaggerated allegations about Dominion and its purported role in a plot to steal votes from Mr. Trump.

Those bogus assertions — made day after day, including allegations that Dominion was a front for the communist government in Venezuela and that its voting machines could switch votes from one candidate to a different — are at the middle of the libel suit, some of the extraordinary brought against an American media company in greater than a generation.

First Amendment scholars say the case is a rarity in libel law. Defamation claims typically involve a single disputed statement. But Dominion’s criticism is replete with example after example of false statements, lots of them made after the facts were widely known. And such suits are sometimes quickly dismissed, due to the First Amendment’s broad free speech protections and the high-powered lawyers available to a serious media company like Fox. In the event that they do go forward, they are often settled out of court to spare each side the costly spectacle of a trial.

But Dominion’s $1.6 billion case against Fox has been steadily progressing in Delaware state court this summer, inching ever closer to trial. There have been no moves from either side toward a settlement, based on interviews with several people involved within the case. The 2 firms are deep into document discovery, combing through years of one another’s emails and text messages, and taking depositions.

These people said they expected Rupert and Lachlan Murdoch, who own and control the Fox Corporation, to take a seat for depositions as soon as this month.

The case threatens an enormous financial and reputational blow to Fox, by far essentially the most powerful conservative media company within the country. But legal scholars say it also has the potential to deliver a robust verdict on the sort of pervasive and pernicious falsehoods — and the individuals who spread them — which can be undermining the country’s faith in democracy.

“We’re litigating history in a way: What’s historical truth?” said Lee Levine, a noted First Amendment lawyer who has argued several major media defamation cases. “Here you’re taking very recent current events and going through a process which, at the top, is potentially going to declare what the proper version of history is.”

The Trump Investigations

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The Trump Investigations

Quite a few inquiries. Since Donald J. Trump left office, the previous president has been facing several different civil and criminal investigations across the country into his business dealings and political activities. Here’s a have a look at some notable cases:

The Trump Investigations

Jan. 6 investigations. In a series of public hearings, the House select committee investigating the Jan. 6 attack laid out a robust account of Mr. Trump’s efforts to overturn the 2020 election. This evidence could allow federal prosecutors, who’re conducting a parallel criminal investigation, to indict Mr. Trump.

The Trump Investigations

Georgia election interference case. Mr. Trump himself is under scrutiny in Georgia, where the district attorney of Fulton County has been investigating whether he and others criminally interfered with the 2020 election within the state. This case could pose essentially the most immediate legal peril for the previous president and his associates.

The case has caused palpable unease on the Fox News Channel, said several people there, who would speak only anonymously. Anchors and executives have been preparing for depositions and have been forced at hand over months of personal emails and text messages to Dominion, which is hoping to prove that network employees knew that wild accusations of ballot rigging within the 2020 election were false. The hosts Steve Doocy, Dana Perino and Shepard Smith are among the many current and former Fox personalities who either have been deposed or shall be this month.

Dominion is attempting to construct a case that goals straight at the highest of the Fox media empire and the Murdochs. In court filings and depositions, Dominion lawyers have laid out how they plan to indicate that senior Fox executives hatched a plan after the election to lure back viewers who had switched to rival hard-right networks, which were initially more sympathetic than Fox was to Mr. Trump’s voter-fraud claims.

Libel law doesn’t protect lies. However it does leave room for the media to cover newsworthy figures who tell them. And Fox is arguing, partially, that’s what shields it from liability. Asked about Dominion’s strategy to put the Murdochs front and center within the case, a Fox Corporation spokesman said it will be a “fruitless fishing expedition.” A spokeswoman for Fox News said it was “ridiculous” to say, as Dominion does within the suit, that the network was chasing viewers from the far-right fringe.

Fox is predicted to dispute Dominion’s estimated self-valuation of $1 billion and argue that $1.6 billion is an excessively high amount for damages, because it has in an analogous defamation case filed by one other voting machine company, Smartmatic.

A spokesman for Dominion declined to comment. In its initial criticism, the corporate’s lawyers wrote that “The reality matters,” adding, “Lies have consequences.”

For Dominion to persuade a jury that Fox ought to be held responsible for defamation and pay damages, it has to clear an especially high legal bar generally known as the “actual malice” standard. Dominion must show either that folks inside Fox knew what hosts and guests were saying concerning the election technology company was false, or that they effectively ignored information proving that the statements in query were unsuitable — which is thought in legal terms as displaying a reckless disregard for the reality.

A judge recently ruled that Dominion had met that actual malice standard “at this stage,” allowing it to expand the scope of its case against Fox and the sort of evidence it will probably seek from the corporate’s senior executives.

In late June, Judge Eric M. Davis of Delaware Superior Court denied a motion from Fox that will have excluded the parent Fox Corporation from the case — a much larger goal than Fox News itself. That business encompasses essentially the most profitable parts of the Murdoch American media portfolio and is run directly by Rupert Murdoch, 91, who serves as chairman, and his elder son, Lachlan, the chief executive.

Soon after, Fox replaced its outside legal team on the case and hired one in every of the country’s most distinguished trial lawyers — an indication that executives consider that the probabilities the case is headed to trial have increased.

Dominion’s lawyers have focused a few of their questioning in depositions on the decision-making hierarchy at Fox News, based on one person with direct knowledge of the case, showing a specific interest in what happened on election night contained in the network within the hours after it projected Mr. Trump would lose Arizona. That decision short-circuited the president’s plan to prematurely declare victory, enraging him and his loyalists and precipitating a short lived rankings crash for Fox.

These questions have had a singular focus, this person said: to put Lachlan Murdoch within the room when the choices about election coverage were being made. This person added that while testimony to date suggests the younger Murdoch didn’t attempt to pressure anyone at Fox News to reverse the decision — as Mr. Trump and his campaign aides demanded the network do — he did ask detailed questions on the method that Fox’s election analysts had used after the decision became so contentious.

Fox’s legal team has cited the broad protections the First Amendment allows, arguing that statements about Dominion machines from its anchors like Mr. Dobbs and Ms. Bartiromo, and guests like Rudolph W. Giuliani and Sidney Powell, were protected opinion and the sort of speech that any media organization would cover as indisputably newsworthy.

“When the president and his lawyers are making allegations, that in and of itself is newsworthy,” Dan Webb, the trial lawyer brought in by Fox several weeks ago, said in an interview. “To say that shouldn’t be reported on, I don’t think a jury would buy that. And that’s what I feel the plaintiffs are saying here.”

Mr. Webb’s most up-to-date experience in a serious media defamation case was representing the opposite side: a South Dakota meat manufacturer in a lawsuit against ABC for a report concerning the safety of low-cost processed beef trimmings, often called “pink slime.” The case was settled in 2017.

But Fox has also been looking for evidence that would, in effect, prove the Dominion conspiracy theories weren’t really conspiracy theories. Behind the scenes, Fox’s lawyers have pursued documents that will support quite a few unfounded claims about Dominion, including its supposed connections to Hugo Chávez, the Venezuelan dictator who died in 2013, and software features that were ostensibly designed to make vote manipulation easier.

In accordance with court filings, the words and phrases that Fox has asked Dominion to go looking for in internal communications going back greater than a decade include “Chavez” and “Hugo,” together with “tampered,” “backdoor,” “stolen” and “Trump.”

Fox News and Fox Business gave a platform to a number of the loudest purveyors of those theories, including Mike Lindell, the MyPillow founder, and Mr. Giuliani, the president’s personal lawyer, in the times and weeks after major news outlets including Fox declared Joseph R. Biden Jr. the president-elect. In a single interview, Mr. Giuliani falsely claimed that Dominion was owned by a Venezuelan company with close ties to Mr. Chavez, and that it was formed “to repair elections.” (Dominion was founded in Canada in 2002 by a person who desired to make it easier for blind people to vote.)

Mr. Dobbs, who conducted one in every of the interviews cited in Dominion’s criticism, responded encouragingly to Mr. Giuliani, saying he believed he was witnessing “the endgame to a four-and-a-half-year-long effort to overthrow the president of the US.” Fox canceled Mr. Dobbs’s Fox Business show last yr, though it has never issued a retraction for any of the commentary about Dominion.

Dominion has also filed separate lawsuits against Mr. Giuliani, Ms. Powell and Mr. Lindell.

Dominion says in its criticism that within the weeks after the election, people began leaving violent voice mail messages at its offices, threatening to execute everyone who worked there and blow up the headquarters. At one office, someone hurled a brick through a window. The corporate needed to spend lots of of 1000’s of dollars on security and lost lots of of tens of millions more in business, based on its criticism.

“The harm to Dominion from the lies told by Fox is unprecedented and irreparable due to how fervently tens of millions of individuals believed them — and proceed to consider them,” its criticism said.

The corporate has tried to attract a connection between those falsehoods and the Jan. 6 siege on the Capitol. “These lies didn’t simply harm Dominion,” the corporate said within the criticism. “They harmed democracy. They harmed the thought of credible elections.”

As a part of its case, it cites some of the indelible images from the Jan. 6 attack: a person within the Capitol on Jan. 6, 2021, clutching zip ties in his left hand. Also within the suit is a second photo of the person, later identified as Eric Munchel of Tennessee, during which he’s brandishing a shotgun, with Mr. Trump on a television within the background. The tv is tuned to Fox Business.

However the hurdle Dominion must clear is whether or not it will probably persuade a jury to consider that folks at Fox knew they were spreading lies.

“Disseminating ‘The Big Lie’ isn’t enough,” said RonNell Andersen Jones, a law professor and First Amendment scholar on the University of Utah’s S.J. Quinney College of Law. “It must be a knowing lie.”

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