A Delaware judge declined to toss out a $1.6 billion defamation lawsuit against Fox News filed by Dominion Voting Systems, which claims that the network “sold a false story of election fraud” in the aftermath of the 2020 presidential race.
The ruling on Fox News’ motion to dismiss means that Dominion’s litigation can proceed.
Judge Eric Davis wrote in his opinion (read it here) that Dominion’s lawsuit “alleges facts that Fox made the challenged statements with knowledge of their falsity or with reckless disregard of their truth.”
He added, “The Complaint also alleges facts that there were signs indicating the reports were false. From these, the Court can infer that Fox intended to avoid the truth. Whether Dominion ultimately will prove Fox’s actual malice by clear and convincing evidence is irrelevant on a motion to dismiss. At this stage, it is reasonably conceivable that Dominion has a claim for defamation per se.”
In a statement, Fox News Media said, “As we have maintained, Fox News, along with every single news organization across the country, vigorously covered the breaking news surrounding the unprecedented 2020 election, providing full context of every story with in-depth reporting and clear-cut analysis. We remain committed to defending against this baseless lawsuit and its all-out assault on the First Amendment.”
In refusing Fox News’ motion to dismiss, the judge ran through the specific allegations in the Dominion lawsuit, but wrote that “unless otherwise indicated, the following facts are stated as alleged in the Complaint. For purposes of the Motion, the Court must view all well-pled facts alleged in the Complaint as true and in a light most favorable to Dominion.” What it means is that the full conclusions on the merits of the case to come.
Dominion, which filed the lawsuit in March, alleged that in the aftermath of the election, in which Fox news was the first TV outlet to call the state of Arizona for Joe Biden, the network sought to “win back viewers” by “connecting Dominion with the false election fraud narrative.”
Among the instances singled out was a Nov. 8 edition of Sunday Morning Futures with Maria Bartiromo, featuring guest Sidney Powell, who represented the Trump campaign. At one point, according to the lawsuit, Bartiromo asked Powell, “Sidney, we talked about the Dominion software. I know that there were voting irregularities. Tell me about that.” Powell responded, “That’s putting it mildly. . . . That is where the fraud took place, where they were flipping votes in the computer system or adding votes that did not exist. . . . That’s when they had to stop the vote count and go in and replace votes for Biden and take away Trump votes.”
Dominion contends that after informing Fox News personnel of the falsity of the claims, the network continued to invite Powell on its shows.
It cited a Dec. 10, 2020 Lou Dobbs show, where he said, “”>At the center of it all, Dominion Voting Systems. Are they the culprit here? Not the only culprit, but are they the principal culprit?….But concomitantly, Dominion Voting Systems, with – you have described it, with algorithms in which – which were designed to be inaccurate rather than to be a secure system.” Dobbs’ Twitter account also had the statement, “The 2020 Election is a cyber Pearl Harbor: The leftwing establishment have aligned their forces to overthrow the United States government #MAGA #AmericaFirst #Dobbs.” Dominion noted that the tweet included an embed of a typewritten document that read, “We have technical presentations that prove there is an embedded controller in every Dominion machine….We have the architecture and systems, that show how the machines can be controlled from external sources, via the internet, in violation of voting standards, Federal law, state laws, and contracts.”
In their motion to dismiss, Fox News attorneys argued that Bartiromo “simply summarized what Powell alleged before the break. Powell then expanded on her prior allegations.” They also defended Dobbs’ statements as “hyperbolic opinion” and noted that the host had been known for his “fiery rhetoric.” They also said that “courts have recognized that Twitter is not a forum where reasonable viewers would conclude they are seeing actual facts about the plaintiff.”
But Davis wrote that Dominion “pleads specific facts that put Fox on notice as to Dominion’s claims.”
He also rejected Fox News’ defense that its coverage was protected by the neutral reporting privilege, or the doctrine that the press should not have to suppress “newsworthy statements merely because it has serious doubts regarding their truth.”
“To assert and benefit from this defense, a defendant must show that the defendant accurately and dispassionately reported the newsworthy event,” Davis wrote. “As such, Fox’s reporting must have been neutral, not ‘a personal attack’ on Dominion, to succeed on this defense. Dominion’s well-pleaded allegations, however, support the reasonable inference that Fox’s reporting was not accurate or dispassionate.”
“When Fox guests spread or reiterated disinformation about Dominion, Fox did not use the information Dominion provided to correct its guests or to reorient its viewers,” Davis wrote. “Instead, Fox and its personnel pressed their view that considerable evidence connected Dominion to an illegal election fraud conspiracy.”
He also rejected Fox News’ contention that statements were opinion. He wrote that it was “reasonably conceivable that Fox and its personnel broadcasted mixed opinions that were based on either false or incomplete facts unknown to the reasonable viewer. Many of Fox’s reporters made broad election fraud statements that did not disclose their sources clearly, or clearly connect their statements to the election fraud litigations. Although Fox classifies its reporters’ remarks as commentary’ that used ‘loose and hyperbolic rhetoric’ for entertainment value, even loose and hyperbolic language can be actionable if it rests on false statements of fact undisclosed to viewers.”
Fox News also is defending itself in another lawsuit filed by a different election systems company, Smartmatic, which filed a $2.7 billion lawsuit against the network, three of its on-air personalities, Bartiromo, Jeanine Pirro and Dobbs, and two guests, Rudy Giuliani and Sidney Powell. Fox also has moved to dismiss that case, but a New York judge has yet to issue a ruling.
In November, Dominion also filed a lawsuit against Fox News parent Fox Corp., seeking to establish that Rupert and Lachlan Murdoch bore responsibility for what was said on the news network. The lawsuit appears to be an effort to force discovery of emails, texts and other records from the Murdochs, which Dominion is seeking, according to Reuters.
Davis wrote that he needed additional briefings on whether a New York anti-SLAPP statute, designed to prevent lawsuits from suppressing free speech, applied to the proceeding. He also is seeking more briefs on whether Dominion qualifies as a “public” or “private” figure, which establishes the threshold needed to prove a defamation claim. The judge warned, however, that both issues would not affect his ruling to let the case move forward.
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