Yesterday, Fox News and Dominion Voting Systems filed responses to their respective motions for summary judgment in the $1.6 billion defamation case currently being litigated in Delaware Superior Court. As in the last round of briefs released, Fox purported to be shocked, shocked that Dominion would say such terrible things about it, while Dominion went for the jugular, dumping incredibly damaging texts and testimony gleaned during a year’s worth of discovery.
The juiciest revelation is that Fox CEO Rupert Murdoch gave Jared Kushner a preview of Biden’s ads before they were public, along with Biden’s debate strategy. When CNN contributor Donna Brazile gave the Hillary Clinton campaign some of the debate topics in 2016, Eric Bolling of Fox’s The Five called it “treasonous.” Donna Brazile was later hired as a commentator by Fox, and Bolling is now at Newsmax, the rightwing network whose pro-Big Lie coverage caused Fox to flip out and give oxygen to Trump’s false claims of election fraud, according to Dominion’s complaint. American political media is a weird and incestuous place.
Quite aside from the legal implications, Dominion’s Opposition to Fox’s motion for summary judgment is replete with examples of Fox taking an active position in favor of Republicans.
“Trump will concede eventually and we should concentrate on Georgia, helping any way we can,” Rupert Murdoch wrote on November 16, 2020, explicitly admitting that his network intended to aid Republicans in the senate runoffs in Georgia. Similarly, Fox executives and hosts, including Tucker Carlson, personally interceded to force the White House to disavow attorney Sidney Powell, even as the network continued to put her on the air. Even supposedly moderate Paul Ryan, as a member of Fox’s board, urged the Murdochs to tamp down on the baseless election fraud allegations, not out of journalistic integrity, but because he hoped that a break with Trump would be an “inflection point, not just for the company Fox, but for the country and for the conservative movement itself.”
In short, they didn’t cover the election as journalists or a media outlet at all, but rather as a political extension of the conservative movement and the Republican party, which rather undercuts their claim to have been neutrally reporting the news. It really takes chutzpah to claim that allowing Sidney Powell and Rudy Giuliani to lie on air about Dominion was protected under the neutral reportage privilege when Fox executives (1) knew that Powell wasn’t employed by the Trump campaign since they’d leaned on the president to boot her; and (2) privately texted each other that Giuliani was off the rails. In one of many instances of Fox insiders affirming that they knew Giuliani and his allegations were nonsense, Rupert Murdoch complained in a November 7, 2020 text about Rudy “ranting” on Fox airwaves; “I think booze has got him,” the Fox exec agreed.
The elder Murdoch’s communications and testimony contain some of the most damning admissions — which is probably why Fox fought tooth and nail to prevent him going under oath. Not only does the Fox CEO concede that he had the power to ban Giuliani and Powell from Fox and chose not to, but he explicitly admitted under oath that Fox hosts endorsed the false election claims.
Q: In fact, you are now aware that Fox endorsed at times this false notion of a stolen election?
MURDOCH: Not Fox, No. Not Fox. But maybe Lou Dobbs, maybe Maria, as commentators.
Q: We went through Fox hosts Maria Bartiromo, yes?
MURDOCH: Yes. C’mon
Q: Fox host Jeanine Pirro?
MURDOCH: I think so.
Q: Fox Business host Lou Dobbs?
MURDOCH: Oh, a lot.
Q: Fox host Sean Hannity?
MURDOCH: A bit
Q: All were in that document; correct?
MURDOCH: Yes, they were.
Q: About Fox endorsing the narrative of a stolen election; correct?
MURDOCH: No. Some of our commentators were endorsing it.
Q: About their endorsement of a stolen election?
MURDOCH: Yes. They endorsed
Well, it’s not great. And it’s particularly not great when the plaintiff has texts from half the network acknowledging that Trump’s claims of a stolen election were preposterous. You can hardly claim to be a neutral reporter when Rupert Murdoch is admitting in private that the decision to put MyPillow CEO Mike Lindell on the air “is not red or blue, it is green.” Ditto for the testimony that Trump “had a very large following, and they were probably mostly viewers of Fox, so it would have been stupid” to antagonize them. There is no reporters’ privilege for “feeding your audience the lies it wants to hear because otherwise they’ll flee to your competitor and bone your bottom line.”
And anyway, this case is being tried under New York law, and it’s pretty clear that New York doesn’t recognize the neutral reportage privilege. Is Fox seriously asking a Delaware court to overrule New York’s interpretation of its own statute? As Dominion argues, “the neutral reportage defense is unavailable to Fox, both because the doctrine is not good law, and because Fox as a matter of law could never satisfy its requirements for the twenty accused statements.”
In response to this, Fox’s argument appears to be that nothing Rupert Murdoch says counts.
Dominion apparently thinks that a news organization acts with actual malice so long as someone in the organization (or even the organization’s parent company) with supervisory authority over the publication harbors doubt about the allegations and fails to stop the publication from going to press, regardless of whether that person actually played any role in creating or publishing the statements.
In the alternative, it points to all its non-defamatory statements about Dominion, although, as the plaintiff points out, “Fox cannot point to a non-accused broadcast to somehow prove its accused broadcasts are not actionable.”
Fox similarly gestures toward longstanding concerns about the security of electronic voting machines generally in support of its specific claims that Dominion machines helped Biden cheat in 2020. Some of this veers into the downright bizarre, such as when Fox alleges that, “To this day, Dominion continues to service legacy Diebold and Sequoia systems in multiple jurisdictions, despite longstanding criticism of their vulnerabilities.” Presumably this is in support of Giuliani and Powell’s false claims that Dominion and its competitor Smartmatic (which actually was founded in Venezuela) are the same company, and that all Dominion machines contain Smartmatic “DNA.” But, well … congrats on putting your name on this stuff, Paul Clement!
Look, at the end of the day, neither side is getting summary judgment. Dominion’s revelations may be devastating, but they’re not getting $1.6 billion in damages without a trial. The pleadings do, however, point up the difficulty the media and the legal system have in dealing with an executive who tells abject lies, day in, day out. Clearly Fox has never functioned as a neutral reporter, and its protests that it was merely airing the inherently newsworthy claims of a sitting president cannot shield it from liability. But is it the obligation of every news outlet to factcheck everything a politician says in real time?
That’s a much harder question, and clearly one we’ll have to grapple with since Trump and his mendacious ilk aren’t going away. But Fox’s solution, that media can never be held responsible for airing defamatory allegations by any inherently newsworthy figure simply cannot be correct.
As Dominion writes:
Unable to contest the falsity of the statements or Fox’s knowledge of falsity at the time, Fox asks the Court to make new law that would vastly expand a broadcaster’s immunity and would upend settled defamation law.
Fox appears to be asking for a one-factor test, where a publisher has complete immunity to publish false allegations, knowing or recklessly disregarding the truth, as long as they are newsworthy Under Fox’s test, the source of the false charges need not be responsible” or “prominent” and the publisher is free to espouse or concur in the charges all it wants, with impunity.
Even out of office Trump keeps breaking shit: Example eleventy billion.
Liz Dye lives in Baltimore where she writes about law and politics