Dominion vs. Fox News: The case against conspiracy theories

Some of the best-known current and former faces of Fox News may soon trade their anchor chairs for the witness stand in a Delaware courtroom. Tucker Carlson (who once told his viewers, “We’re grateful that you trust us, and we will try to be worthy of your trust”), Sean Hannity, Maria Bartiromo and Lou Dobbs all appear on the witness list, along with top Fox executives (including chairman and CEO Rupert Murdoch), in a defamation lawsuit that could have a devastating impact on the company.

Lee Levine, a retired First Amendment lawyer who has litigated on behalf of major media companies (including CBS and Fox), said the case was the strongest he’d ever seen in terms of evidence: “I have never seen a case involving a public figure where the evidence of actual malice that they will have to put before a jury is stronger.”

Until it filed this lawsuit, few Americans knew much about the plaintiff, Dominion Voting Systems. During the 2020 election, Dominion provided machines and ballot scanners to 28 states. 

On Election Night, Fox News took many of its viewers by surprise when its decision desk called Arizona for Joe Biden.

Chris Stirewalt, Fox News’ political editor at the time, helped make that call. “I was surprised at how damn scared everybody was, and how much just this intense fear [there was],” he said.

“Fear of viewers?” asked Moriarty.

“Fear of viewers, fear about ratings, fear about Trump.”

What happened after that call was an exodus of angry Fox viewers, including President Donald Trump himself.

To win them back, Dominion alleges Fox intentionally allowed people representing Trump on air to make false statements about Dominion, including attorneys Sidney Powell (“President Trump won by not just hundreds of thousands of votes, but by millions of votes”) and Rudy Giuliani (“This was a stolen election”). Fox News’ Jeanine Pirro said, “Dominion Software System has been tagged as one allegedly capable of  flipping votes.”

Levine said, “The Supreme Court has said what is not protected by the First Amendment is the knowing falsehood, the calculated lie.”

Dominion has already begun making its case in public, releasing texts and other communications obtained through litigation, like this one sent by Fox chief political correspondent Bret Baier on November 5, 2020: “There is NO evidence of fraud. None.”

Yet, three days later, his colleague, Maria Bartiromo, interviewed attorney Powell, who falsely claimed she had proof that Dominion had rigged the election: “They also used an algorithm to calculate the votes they would need to flip,” Powell said. 

Part of the proof provided by Powell, according to court documents: an email from a woman who said she gained information from speaking to “the wind.” Bartiromo herself later described the email as “nonsense.”

And still, over the next days and weeks, Powell and Trump’s personal attorney Rudy Giuliani continued to appear on Fox programs. On November 15, Bartiromo said during an appearance by Powell, “Wow, this is explosive, and we will certainly continue to follow it.” And Giuliani told Sean Hannity on November 19, “It was a national conspiracy.”  

Fox also received communications almost daily from Dominion refuting the false claims, but Fox never made a retraction.

Levine said, “One could argue that at the very beginning, when Giuliani and Powell were first saying these things, [Fox] had no reason to believe they were false. But then, once Dominion started sending information to Fox, saying, ‘No, no, no, what they’re saying is false, here’s why,’ then a reasonable jury could find that Fox knew it was false or probably false, and let them come on and say it again.”

In fact, court documents show Fox’s own fact-checking unit, known as the Brainroom, found claims about Dominion switching or deleting votes “are 100% false.”

Moriarty asked Ben Smith, who has written extensively on media issues for The New York Times and now Semafor, an online news site he co-founded, “On the surface, this looks terrible for Fox. But isn’t there some truth to the Fox response that the plaintiff is just cherry-picking?”

“Sure, I mean, they may be cherry-picking, but they are extraordinary cherries!” Smith replied. “It’s just genuinely pretty shocking.

“A big part of the case is the question of whether someone comes on your air and says something crazy. How responsible for that are you?” he said. “And it’s tricky with live television: Somebody just suddenly opens their mouth and says something. And a court isn’t necessarily going to blame the broadcaster. But if you invite them back, again and again and again, even as your senior executives are saying ‘This person is crazy, don’t put them on the air’?”

And Fox show producers, according to court documents, continued to put Powell and Giuliani on air because it was good for business. “Any day with Rudy and Sidney is guaranteed gold,” wrote one producer for Lou Dobbs’ show.

Moriarty asked, “What about Fox’s argument, which is you’ve got a sitting U.S. president and his attorneys making an allegation? That’s newsworthy, and Fox argues that it had to cover it?”

“I think that’s a pretty strong argument,” Smith replied. “Fox didn’t invent Donald Trump. Fox didn’t invent Sidney Powell. And even if they hadn’t gone on Fox, they would have been out there defaming Dominion anyway. I think Fox will say this isn’t really our fault, we’re just reporting on it.”

The judge has already ruled the statements broadcast by Fox were false and defamatory, and just this past week said Fox cannot argue those false statements were newsworthy. 

Still, Dominion faces the biggest hurdle of all: to convince a jury that Fox and its famous faces acted with “actual malice,” that they knew the claims were false (or had serious doubts about them) and aired them anyway.

Moriarty asked former Fox News political editor Chris Stirewalt, “Didn’t you, in your deposition, say by November 7, when the election was called, nobody believed that Donald Trump had won?”

“I said no reasonable person,” Stirewalt replied. “That doesn’t include all TV anchors in the category of reasonable person. I don’t know what anybody believed in their heart of hearts.”

Fox News denies actual malice, asserting in court documents that it “reported Dominion’s denials” and “pushed back” on Sidney Powell’s allegations.

On his November 19, 2020, broadcast, Tucker Carlson said of Powell, “She never demonstrated that a single actual vote was moved illegitimately by software from one candidate to another. Not one.”

Ben Smith said, “I don’t really think that’s how defamation works. I don’t think that if I defame someone and then you don’t defame them, that I get credit for the fact that you didn’t.”

And Fox asserts that some “hosts believed the allegations.” In Maria Bartiromo’s deposition, she said she still doesn’t know what happened in the election. Moriarty asked Levine, “Does that get her off the hook for actual malice if she says, ‘I still don’t know, I didn’t know then and I don’t know now’?”

“The very likely answer to that is no; that does not get her off the hook,” Levine replied. “As one of my former partners has been quoted as saying, there’s no insanity defense in defamation law.”

In a statement responding to this report, Fox said, “Dominion’s lawsuit is a political crusade in search of a financial windfall…”

But whatever happens in court, Dominion may already have won a victory by embarrassing Fox, releasing texts and emails that, among other things, appear to show Tucker Carlson supportive of Trump on air, while expressing something else privately (“I hate him passionately”).

“Dominion has already won a lot,” said Stirewalt.

Two months after the 2020 election, Stirewalt lost his job at Fox. It was officially part of a restructuring. He says he was fired for doing his job too well. He has written a book, “Broken News,” pushing for change at Fox – and all television news networks.

“I think what they’ve already won is getting this basic admission that the news has to be the news,” he said.

     
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Story produced by Alan Golds. Editor: Ed Givnish. 

     
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