Fox News' attorneys have set out the starkest defense yet against the accusation the network defamed an election-technology company when it broadcast false claims that the company had cheated then-President Donald Trump of victory in the 2020 election.
The overwhelming majority of Fox's argument was made in sealed motions filed last week asking the presiding judge to dismiss Dominion Voting Systems' $1.6 billion suit before it is to go to trial in April. Yet in supplementary public filings, the contours of the Fox team's reasoning emerge more sharply in focus.
Of the approximately 115 statements on Fox by its hosts and guests that Dominion contends are defamatory, Fox News wrote in its filing, "there is not a single statement for which Dominion can prove every element of its claim for defamation."
Fox and Dominion did not comment for this story.
An explanation offered for Fox stars' willingness to air debunked claims
In those documents, Fox's attorneys offer "omitted context" for the seemingly incendiary remarks by such hosts as Sean Hannity, Jeanine Pirro, Lou Dobbs and Maria Bartiromo, as well as their featured guests, including Trump and his former campaign attorneys Rudy Giuliani and Sidney Powell. That context includes assertions that have long since been debunked and rebutted in dozens of court challenges and by local and state election officials from both parties.
Among them: claims that the use of Sharpie markers in Maricopa County, Arizona, had invalidated the votes cast by Trump supporters because the ink often bled through the ballots. Allegations of voter fraud in Detroit. The sworn deposition of an anonymous witness who said he was a former member of the Venezuelan presidential security team and accused Dominion of committing election fraud in the U.S.
All of these allegations have been disproven. Many were unraveled in real time during the 2020 election season – often by Fox's own reporters.
Fox News' legal team does not defend them as correct. Instead, its filings suggest that the Fox stars relaying them on the air reflected an appropriate journalistic response to stark claims about the functioning of American democracy, as they involve "questions to a newsmaker on newsworthy subjects" or they "accurately report on pending allegations."
"Didn't stand up to the light of day"
Eddie Perez, board member at the OSET Institute, a non-profit, non-partisan outfit advocating for reliable and transparent election technology, calls the claims about Dominion that were amplified by Fox hosts and peddled by its guests "outlandish."
"If anything, because they were so outlandish, they immediately attracted widespread attention and were debunked," Perez says. "They instantly didn't stand up to the light of day."
In countering Dominion, Fox's lawyers offer a chart of offending statements and what it termed the "omitted context" that could explain why the material was newsworthy, why the Fox hosts' treatment of it was responsible, and then why it was not defamatory.
The network's lawyers write, as they have before, that Fox was merely relaying inherently newsworthy claims by Trump and his surrogates. The lawyers contend the supposedly defamatory statements often involved hyperbolic characterizations or mere opinions. (Fox attorneys previously fended off an unrelated defamation lawsuit against star Tucker Carlson filed by a woman who had an affair with Trump by arguing no one believes that what the Fox star says is literally true.)
Further, Fox's attorneys say many of the claims under dispute were true, or largely true. And the network says Dominion cannot prove "actual malice" – a tough legal standard requiring it to show Fox's journalists and executives acted either with knowledge that what it was broadcasting wasn't true or with reckless disregard.
Fox "doubled down" on Dominion fraud conspiracies
Fox's bold assertion that Dominion will fail to prove any incidents of defamation does not find universal embrace in legal circles. Lawyers with no involvement in the case pointed to statements on Fox's airwaves that they say gave the Trump camp far too much credence for far too long to claim a mere journalistic sensibility.
"Fox's journalists and managers were repeatedly told the stories about the voting machine were false, over a period of weeks," Lucy Dalglish, the dean of the University of Maryland Merrill College of Journalism, writes in an email for this story.
"Quoting the president of the United States and relying on a 'fair report' privilege only gets you so far," says Dalglish, a noted First Amendment advocate and media lawyer. "They didn't just quote Trump. They doubled down and repeatedly reported and opined that Dominion's systems were faulty."
Dominion's legal team is counting on a rich reservoir of material from their questioning of Fox journalists and executives under oath and from mining their emails, texts, and other communications. Only a glimpse of that has come into public view. It suggests, behind the scenes, key people at Fox knew the accusations against Dominion were meritless.
In a sworn deposition cited by a Dominion attorney in court, Hannity said he didn't believe the claims of fraud "for one second." Fox News Media CEO Suzanne Scott told colleagues privately "not to give the crazies an inch." A producer begged her peers in an e-mail not to let Pirro go on the air to spread baseless conspiracy theories pulled from dark recesses of the internet.
Dominion's attorneys have deposed people throughout the Fox hierarchy, from junior producers to stars, to executives, to most recently, controlling owner Rupert Murdoch, who sat for questioning under oath at the Fox Studio lot last Thursday and Friday. Its case relies on the theory that there was an effort - from top to bottom of Fox hierarchy - to appease viewers angered that Fox had been the first television network to call the key state of Arizona for Joe Biden in November 2020. (The Murdochs and Fox refused to reverse the projection despite intense pressure from Trump and his campaign.) That explains the sustained embrace of unsustainable claims, Dominion's legal team argues.
In the new filings, Fox's lawyers are seeking to offer its own context for what played out on the network's shows.
Thomas Wienner, a retired corporate litigator based in Michigan who is following the case at NPR's request, says he appreciates the logic of the Fox team in seeking to undercut each element of Dominion's claims. And he says Fox well may succeed in convincing the court to knock out some of the claimed instances of defamatory statements to be put in front of the jury.
But after reviewing the most recent legal filings, Wienner says he believes Fox is in legal trouble.
"They put themselves in a real pickle when they start to provide the surrounding context," Wienner says. "Sometimes that context is helpful to them. But sometimes... it makes it worse. It doesn't make it better."
"The overall impression you get, when you read the omitted text, is that these people were night after night, day after day, promoting theories that were ridiculous and that had been rejected by the courts," Wienner says. "And there really was no support for them other than a couple of crackpots."
A tale of Sharpie markers in Arizona shared despite thorough debunking
The discredited allegations that helped shape the climate in which the Fox hosts spoke included, among other claims, one echoed by Trump, his campaign and his lawyers: that the use of Sharpie markers in Arizona had invalidated the votes of Trump voters because the ink often bled through the ballots.
Those claims were debunked by Maricopa County officials even before Election Day: "Even if there is bleed through it won't impact counting because our upgraded ballots have off-centered columns and our new tabulators only read the ovals," the county elections department tweeted on Oct. 26, 2020, for example. It said any confusion would be resolved by tallying by hand.
Republican National Committee Chairwoman Ronna McDaniel asserted on Fox that Republican observers were tossed from Michigan voting sites, ominously suggesting that as indirect proof fraud took place. No such fraud was found to have taken place. (A few days after the election, as Fox has noted, anchors Bret Baier and Marsha MacCallum pushed McDaniel repeatedly for any proof of her insinuations.)
In mid-December 2020, Perez appeared on Fox as an expert for an awkward segment in which he was interviewed by an off-camera producer to debunk claims made on the network about a second voting technology company called Smartmatic. It ran on the shows hosted by Dobbs, Bartiromo and Pirro. Dobbs left Fox Business in February 2021, the day after Smartmatic sued Fox in a separate $2.7 billion defamation suit. It is not as far along as the Dominion case.
Fox's supplemental filings last week also reproduce the affidavit of an anonymous man said to be a security guard for a Venezuelan president. He alleged that Smartmatic had ties to the late Venezuelan autocratic leader Hugo Chavez and warned that both election tech companies were attempting to defraud the U.S. voting public. His affidavit was part of a lawsuit filed by the attorney and pro-Trump conspiracy theorist Lin Wood, who was subject of an effort by the Georgia state bar to have his mental fitness evaluated as it weighed a complaint seeking to strip him of his license to practice law. No proof has emerged to support the unnamed man's claims against Dominion and Smartmatic.
"My guess is that the lawyers from Fox cringed every time they saw one of these stories," says Dalglish, the First Amendment lawyer and dean. "I certainly did."
Karl Baker contributed to this story. [Copyright 2023 NPR]
