Dominion Voting Systems and Fox offered dueling views of defamation law in their latest filings, as each side seeks a summary judgment ruling that could forestall a planned trial in April.
The case has generated huge attention in recent weeks, as Dominion’s filings have revealed a trove of text messages, emails and deposition transcripts showing that Fox figures disbelieved Donald Trump’s election fraud claims, yet did not stop network personalities and guests from amplifying allegations that votes were rigged to ensure that Joe Biden would win the election.
The filings from Dominion (read it here) and Fox News and Fox Corp. (read them here and here) give a glimpse of how they will argue their motions for summary judgment before Delaware Superior Court later this month. Judge Eric M. Davis has scheduled oral arguments for March 21. If he turns down both summary judgment motions, a jury trial is scheduled to start in April.
In its brief, Fox’s legal team argued that “so long as the press makes clear that the allegations are just allegations, it is free to offer its opinion that the allegations are “credible” and merit investigation (as some Fox News hosts and other networks did), just as it is free to offer its opinion that the allegations are implausible (as other Fox News hosts and other networks did).”
“Dominion does not even try to argue that a reasonable viewer would fail to understand that the vast majority of the statements it challenges were ‘mere allegations’ made by the President and his lawyers, not proven facts about Dominion,” Fox News’ lawyers wrote. “Nor could it.”
In its legal filings and press statements, Fox News has defended its coverage by arguing that it was undoubtedly newsworthy: a sitting president’s allegations of election fraud. In its latest brief, its attorneys contended that if “the press was duty-bound to suppress the true fact that the sitting President of the United States was accusing Dominion and others of massive election fraud. If that were the law, then not only did virtually every news outlet in the nation defame Dominion repeatedly in the wake.”
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For their part, Dominion’s attorneys claimed that Fox was trying to create a “radical new rule of complete immunity for knowingly publishing false ‘newsworthy allegations,’ and leave in place the careful balance struck since New York Times v. Sullivan between the protection of free speech and the protection of hard-earned reputations.”
“Media companies may always report the truth, including reporting on false allegations while explaining that the allegations are false, and Dominion did not sure the many media companies that did just that in 2020,” Dominion’s legal team wrote.
“A publisher who knows the truth can still publish the allegations, but must tell his audience the truth can still publish the allegations, but must tell its audience the truth — that the allegations are false — or face defamation liability. That is not Dominion rewriting First Amendment law; it’s the bedrock of decades of First Amendment precedent.” [The italics were included for emphasis by Dominion’s lawyers].
Dominion’s attorneys also argued that they have firmly established that Fox knew the statements were false or acted with reckless disregard for the truth, the threshold that plaintiffs have to prove to win a defamation judgment in a case like this. “The wealth of real-time information demonstrates why every person acted with actual malice,” the attorneys wrote, noting that 19 of 20 broadcasts cited in their complaint occurred after it sent out a “Setting the Record Straight” email, informing Fox News personnel of the falsity of the election rigging claims.
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“Some shows stopped airing the allegations because they knew they would have to ‘tell the truth,'” Dominion’s attorneys argued. Host Laura Ingraham, they wrote, “admitted at her deposition that by November 12, she ‘made the decision not to air the false allegations of Dominion.”
Dominion also argued that statements from top executives like Rupert Murdoch, who called the election fraud claims “really crazy stuff” and testified that he never believed that Dominion rigged the vote, are relevant to proving actual malice.
“Courts have found that where an editor or an executive responsible for a publication knows it is false or seriously doubts its truth, that editor or executives’s actual malice suffices for liability,” the company’s attorneys wrote.
Fox News, though, claimed that Dominion “must bring home actual malice to the people who are actually responsible for the challenged statements.”
“According to Dominion, a media organization acts with the requisite actual malice so long as anyone in the ‘chain of command’—from line-level producers to the CEO to the highest executives at the publication’s parent company—did not believe something someone on one of the organization’s shows said, even if that person played no role in drafting, editing, or publishing that statement or even knew that it existed,” the Fox attorneys wrote. “Thus, in Dominion’s view, Fox News acted with actual malice if Lachlan Murdoch did not believe something he never knew Sidney Powell said on Lou Dobbs’ show.”
Dominion’s legal team wrote that there is evidence of instances where each “Fox host and producer also acted with actual malice.” As an example, they claimed that Dobbs, in deposition testimony, admitted “that by November 13  he had never ‘seen any verifiable, tangible support’ for the claims against Dominion.”
The company also pointed to testimony from David Clark, a Fox News executive who had responsibility over Sunday Morning Futures with Maria Bartiromo and Justice with Judge Jeanine. They pointed to a portion of his deposition when he was asked, “By November 6, sir, did you know that there were false conspiracy theories circulating generally, correct?” “I am going to say yes,” he answered. “Yet Clark allowed Bartiromo’s show to air the next day,” Dominion’s attorneys wrote. “By November 14, Clark had received Dominion’s emails so many times he joked they were ‘tatooed’ on his body.”
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