A major defamation lawsuit against Fox News has begun – and much is at stake.
Dominion Voting Systems, a voting machine company, has brought a $1.6 billion (£1.29 billion) defamation case against the right-wing network in a trial over the broadcaster’s alleged role in spreading the lie of a stolen 2020 presidential election.
As well as the threat to Fox of eye-watering damages, the six-week trial has potential to pull back the curtain on former US president Donald Trump’s flse claims and how the right-wing TV network operates.
Sworn testimony is expected from Fox’s billionaire founder, Rupert Murdoch, and on-air talent, including Tucker Carlson and Sean Hannity.
What is the case?
Denver-based Dominion claims New York-based Fox News and its parent company, Fox Corp, essentially destroyed the voting company’s business and subjected employees to threats by falsely implicating it in a bogus conspiracy to rig the election against Trump.
Dominion says its lawyers sent Fox employees more than 3,600 emails attempting to correct Fox’s reporting on the issue. The company identified 20 specific statements from Fox broadcasts between November 8, 2020, and January 26, 2021, that it says were legally defamatory.
Fox contends that it was reporting newsworthy charges made by supporters of the Republican then-president and is supported legally by libel standards. After a one-day delay that raised the possibility of a last-minute settlement between the litigants, seating of the jury in Delaware took place on Tuesday, with opening statements expected to follow.
What do we know already?
Court documents have already been unsealed by Delaware superior court judge Eric M Davis, and the cache has illuminated the inner workings of the conservative network like never before.
It shows prominent figures at Fox didn’t believe the fraud allegations. Yet in public, Dominion argues, Fox News amplified the conspiracy theories and invited guests such as Trump ally Sydney Powell on air to allege Dominion’s voting systems had switched votes from Trump to Joe Biden, the Democrat who beat Trump to the White House.
Multiple staffers texted and emailed in disbelief as Trump latched onto increasingly tenuous claims of being robbed by voter fraud.
Hannity said in a deposition that he did not believe the fraud claims “for one second” but wanted to give accusers the chance to produce evidence. Hosts Carlson, Hannity and Laura Ingraham mocked Powell for spreading the claims. “This Dominion shit is going to give me a fucking aneurysm,” one Fox producer wrote in a message. “MIND BLOWINGLY NUTS,” wrote Fox Corporation SVP Raj Shah, per court documents.
Murdoch, questioned under oath, agreed the 2020 election was free and fair: “The election was not stolen,” he said.
In one email, Murdoch called Trump’s rhetoric “bullshit and damaging”. After Trump aide Rudy Giuliani gave a disastrous press conference on the conspiracy claims, Murdoch commented: “Really crazy stuff”.
Why did Fox adopt its position?
The court papers have laid out a profound concern at Fox over the impact of its election night call that Biden had beaten Trump in the battleground state of Arizona.
Calling Arizona for Biden was an unpleasant shock to supporters of Trump, including many Fox viewers. Not only were they facing losing the White House, but the news had been delivered to them by a source they could usually expect to advocate for their cause.
Fox got the scoop on the call, but Trump and many Fox viewers began tuning in to rival conservative media outlets such as Newsmax.
Emails and memos released in the case show Fox executives were highly aware of a drop-off in their network’s viewership at the same time that Newsmax was gaining viewers, and the executives viewed that dynamic as a potential threat.
Carlson noted with irritation that the company’s stock price was down. Fox News Network CEO Suzanne Scott wrote in an email to Murdoch about the need to “keep the audience who loves and trusts us”.
What is Fox’s defence?
While Dominion’s case may seem strong, the US Constitution and Supreme Court precedent makes it difficult to prove defamation by a news outlet. Dominion will need to prove “actual malice”, meaning that Fox either knew what it was airing was wrong or acted in reckless disregard for the truth.
Fox says Dominion can’t prove its case, but some First Amendment advocates suggest the voting machine company has a strong argument. Their worry is that a prolonged legal battle would give the Supreme Court a chance to change libel laws that would weaken protection for all the media.
“Dominion’s lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights,” Fox said in a statement to HuffPost. “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.”
Was there any evidence of election fraud?
Federal and state election officials, exhaustive reviews in multiple battleground states where Trump challenged his loss, and Trump’s attorney general found no widespread fraud that could have changed the outcome of the 2020 election. Nor did they uncover any credible evidence that the vote was tainted. Trump’s allegations of fraud also have been roundly rejected by dozens of courts, including by judges he appointed.