Fox News faces tough libel lawsuit over its Dominion voting lies

Originally published in the Spring 2023 issue of California Publisher.

By Jason M. Shepard

After Joe Biden defeated Donald Trump in the 2020 presidential election, Fox News aired dozens of statements about alleged election fraud that turned out not to be true.

Were Fox anchors and executives fairly covering both sides of a newsworthy debate, or did they knowingly or recklessly repeat lies that damaged other people’s reputations?

A jury in Delaware is expected to decide if Fox News and its parent company acted with “actual malice” in publishing false statements about Dominion Voting Systems, and if so, whether they are liable for up to $1.6 billion in damages for defamation.

The case could be one of the most significant libel lawsuits since the U.S. Supreme Court’s New York Times v. Sullivan decision in 1964. If a settlement is not reached, the case is scheduled to start in mid-April and last up to six weeks.

While journalists and free press groups are often critical of libel lawsuits for fear of a chilling effect on First Amendment freedoms, many experts see this case differently.

At the heart of the case are multiple Fox broadcasts that fueled allegations by President Donald Trump and his supporters of a rigged or stolen election.

The evidence against Fox made public so far is damning. Email and text messages among Fox anchors and executives make clear they did not believe some of the information they were airing. And some harshly criticized in private the false allegations they were amplifying publicly.

For example, Trump lawyer Sidney Powell was interviewed multiple times on Fox to make false allegations of voting fraud, despite Fox anchors and executives texting that she “is lying all the way,” “is a complete nut,” and is a “fucking nutcase,” according to court records.

Text and email messages show executives were concerned about alienating their viewers if they debunked the false statements made by Powell and other Trump supporters. They also saw spiking ratings for their far-right rivals Newsmax and One America News (OAN) who amplified election conspiracies. One executive saw the debate over airing election conspiracies as “an existential moment for the nation and for Fox News as a brand.”

The lawsuit names five Fox anchors, Maria Bartiromo, Tucker Carlson, Lou Dobbs, Sean Hannity, Jeanine Pirro, as publicizing, endorsing, repeating and agreeing with false statements made by Trump supporters including Powell, Rudolph Giuliani, and Mike Lindell.

Dominion argues that 20 statements broadcast and repeated on Fox were false and damaging to its business and reputation. The statements included allegations that Dominion committed election fraud, manipulated voting counts, was owned by a Venezuelan company to rig an election for Hugo Chavez, and paid kickbacks to government officials, according to court records.

Fox argues that it was merely presenting newsworthy allegations made by others, and that no reasonable viewer would understand the allegations against Dominion to be true.

Fox also argues that under the First Amendment and state law, “the reporting of a newsworthy allegation by the press is not defamatory, even if the allegations are later found to be false.”

Indeed, under the First Amendment, many false statements are protected from libel lawsuits. In the 1964 Sullivan decision, the Supreme Court said because “erroneous statement is inevitable in free debate,” some false statements “must be protected if the freedoms of expression are to have the breathing space that they need … to survive.”

To win a libel lawsuit under the Sullivan standard, a public-figure plaintiff such as Dominion has a high burden. Not only must plaintiffs prove the statements were false and damaging to their reputation, but they also must prove the statements were made with “actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

To prove knowing falsity, Dominion needs prove that Fox anchors or executives knew they were lying when they broadcast the information.

To prove reckless disregard for the truth, Dominion needs to show that Fox anchors and executives “entertained serious doubts as to the truth of publication” or had a “high degree of awareness of probable falsity,” according to legal standards.

Dominion, in court records, seems ready. “This case is the rare defamation case with extensive direct evidence of actual malice,” Dominion claims.

Delaware Superior Court Judge Eric Davis has set the stage for a dramatic trial in a series of pre-trial rulings.

In March, he issued a ruling on motions for summary judgment. He refused to dismiss the case on First Amendment grounds and said none of the usual privileges in libel law apply.

In many cases, so-called “privileges” protect libel defendants from damages. For example, the neutral reporting privilege protects individuals for fairly reporting newsworthy events, although this is limited in this jurisdiction. The fair report privilege protects defendants if the information comes from official proceedings or documents. And the opinion privilege protects statements of pure or mixed opinion, rather than assertions of fact.

None of the privileges apply to the statements Fox made about Dominion, Judge Davis ruled.

Judge Davis also ruled the alleged statements were indeed false. And he declined to dismiss a motion to exclude Fox’s parent company as a defendant.

The judge said a jury would decide whether Fox acted with actual malice, and if so, what the damages would be.

As the case advanced to jury selection, Judge Davis issued additional ominous rulings against Fox. He found that Fox may have withheld evidence in discovery and mispresented the role Rupert Murdoch played inside Fox News. The judge said he may appoint a “special master” to investigate whether Fox lawyers committed misconduct in the lead up to the trial.

“What do I do with attorneys that aren’t straightforward with me?” the judge asked Fox’s lawyers, according to news reports.

The case is one to watch for many reasons. For media law experts who worry about growing criticism that the Sullivan precedent is too protective of false statements, this case could show its strength. While the actual malice standard is indeed a high standard, it is not an impossible burden to meet. And if Dominion prevails, the case may be a bellwether in the fight against defamatory disinformation.

Jason M. Shepard, Ph.D., is professor and chair of the Department of Communications at California State University, Fullerton. His primary research expertise is in media law, and he teaches courses in journalism, and media law, history and ethics. Contact him at jshepard@fullerton.edu or Twitter at @ jasonmshepard.