Sean Hannity. Tucker Carlson. Steve Doocy. Maria Bartiromo. Lou Dobbs. Jeanine Pirro. Shepard Smith. They’re among the parade of current and former Fox hosts who have been called for a deposition in the ongoing libel litigation initiated by Dominion Voting Systems, which claims in a $1.7 billion lawsuit that Fox “intentionally and falsely” blamed Dominion for Donald Trump’s loss in the 2020 election.
Dominion provided voting technologies to dozens of states during the election, and the company alleges Fox “endorsed, repeated, and broadcast…verifiably false yet devastating lies” about its products and services, among them that Dominion committed election fraud; that its software manipulated vote counts; that it’s owned by a firm founded in Venezuela to rig elections for the late Hugo Chávez; and that it paid kickbacks to government officials who used its technologies.
These statements “recklessly disregarded the truth,” Dominion says, “deeply damaged [its] once-thriving business”—and even caused employees to be harassed or to receive death threats, according to the complaint. Some of the statements were made by Fox hosts and others by guests, encouraged (or at least not discouraged) by the hosts, the suit claims.
As the 2022 midterms approach, lies about the 2020 race remain as potent as ever, with Trump and his allies continuing to undermine Joe Biden’s decisive victory and with election deniers poised to appear on ballots in dozens of states. And some of the fallout from the last presidential election is still playing out in the courts, in litigation that could determine whether several conservative media outlets (Fox News, One America News, Newsmax) bear responsibility for amplifying bogus claims or if their actions are protected under the First Amendment and other legal privileges.
Dominion filed its complaint against Fox News in March 2021, and later filed a related one naming the network’s parent company, Fox Corporation, as a defendant, potentially increasing the legal exposure of Rupert and Lachlan Murdoch. Fox is also facing a $2.7 billion defamation suit from the voting-technology firm Smartmatic, which alleges that Fox and key Trump allies, including Rudy Giuliani, engaged in a similar disinformation campaign that seriously harmed Smartmatic’s reputation and business interests. Coincidentally, a judge ruled on Monday, in a separate suit, that MyPillow CEO Mike Lindell must face Smartmatic’s libel claims over his false accusations that the company rigged the 2020 election. (Lindell told Bloomberg in response to the ruling, “These judges are making horrific decisions, letting these cases move forward. It’s disgusting. It’s a violation of my First Amendment rights.”)
Fox filed motions to dismiss both Dominion cases, arguing most notably that the statements at issue were protected because they involved newsworthy allegations made by a sitting president and his advisers about matters of public concern, and they were offered as statements of opinion and hyperbole rather than fact. The court denied the motions in large part (only allowing Fox Broadcasting, yet another entity, to be dismissed as a defendant), and since then the litigation has proceeded to discovery, picking up speed over the summer.
The parties have been conducting depositions and exchanging interrogatories (lists of questions one party sends to the other to be answered under oath), and they’ve been compelling each other to produce various materials. Dominion, for example, has obtained emails and texts that reveal some of what Fox’s journalists, hosts, and executives knew, according to NPR. (One Fox News producer reportedly warned colleagues in November 2020 that Pirro was seizing upon conspiracy theories.) And Fox has been seeking Dominion internal communications that contain terms like Chavez and Hugo and stolen—apparently to try to show that there was some basis for the network’s coverage. In the latest round of depositions, Dominion has called producers for Carlson to testify over the next three weeks, and the company has subpoenaed a former producer for Dobbs. (Fox canceled Dobbs’s Fox Business show last year, a day after he was named in the Smartmatic suit against the network.)
Dominion did not reply to a request for comment, and Fox News said in a statement: “We are confident we will prevail as freedom of the press is foundational to our democracy and must be protected, in addition to the damages claims being outrageous, unsupported and not rooted in sound financial analysis, serving as nothing more than a flagrant attempt to deter our journalists from doing their jobs.”
At this point, there are no signs of a settlement, and based on the court filings (as well as Fox’s decision to hire the heavyweight litigator Dan Webb), the case looks as if it really could go to trial. It’s scheduled to begin in April 2023 in Delaware state court, and two legal issues will likely get a lot of attention: the fault standard and opinion protections. Some background here is useful. Libel is the publication of false statements of fact that harm a person’s or organization’s reputation, and the courts have developed principles to balance the interests of reputation and speech. What has emerged is a labyrinthine area of law in which it’s generally difficult for a plaintiff to win, by proving numerous elements while parrying the other party’s defenses.
The fault standard is one of those elements. Public officials and figures must prove that a libelous statement was published with knowledge that it was false or with reckless disregard of its truth or falsity (this is commonly called actual malice). Dominion could be deemed a public figure if, say, the court concluded that the company was prominent in its field before Fox made it a household name. Moreover, Dominion’s complaint and pretrial motions already plead that Fox acted with actual malice, and in rulings on those motions the court held that Dominion had adequately pleaded as much, for that stage of the proceedings.
There’s no doubt that in the depositions and interrogatories, along with the efforts to obtain Fox emails and texts, Dominion is probing the extent to which Fox personnel knew they were airing false statements or aired them with reckless disregard of their truth or falsity. The latter requires proof of a “high degree of awareness of their probable falsity.” This would take into account whether Fox’s sources were reliable, whether Fox ignored clear signs that the statements were wrong, whether Fox adequately investigated the facts, and what motives shaped the statements. Reckless disregard is frequently a mix of these factors, and it’s very possible Dominion could demonstrate it, based on what we know so far.