Knowledge and recklessness to be put to the test - again

Dominion Voting Systems is a for-profit company that sells voting technology systems and services to state and local governments. Fox Corporation is a publicly traded news, sports, and entertainment company that consists of numerous subsidiary businesses, including the Fox News Network that bills itself as “one of the most influential news properties in history.”

In 2021, Dominion sued the Fox News Networks for defamation per se in Delaware (U.S. Dominion, et al. v. Fox News Network, LLC, N21C-03-257 Del. Super. Ct. Mar 26, 2021). The complaint alleges Fox broadcast unsupported and false claims about Dominion. It seeks compensatory and special damages of more than $2B against the Fox News Network.

The Supreme Court has held that the First Amendment requires that a party alleging defamation show that the “speaker” acted with a certain level of intent, namely that the defendant published the defamatory falsehood either with knowledge of the falsity or with reckless disregard of the truth. Dominion claims that Fox “intentionally and falsely” aired statements by network agents and guests blaming Dominion for former president Donald Trump’s loss in the 2020 election by rigging it. Dominion argues that Fox repeatedly broadcast verifiably false statements. It also alleges that Fox recklessly disregarded the truth about the 2020 election. According to the complaint, Fox’s defamatory actions were taken to serve its own commercial purposes by maintaining its viewership and revenues.

On Feb. 16, 2023, Dominion moved for summary judgment in a redacted publicly available brief. Its claim of defamation is based on four categories of statements made by Fox hosts, including Maria Bartiromo, Lou Dobbs, Jeanine Pirro, Sean Hannity, Tucker Carlson, Laura Ingraham, as well as producers, executives and guests. The level of detail about the hosts knowing that they were deliberately deceiving their audiences is stunning. In response, Fox argues the challenged statements are not actionable for several reasons. Fox maintains it is protected by fair reporting principles and that the statements of opinion are not legally defamatory.

Dominion argues the categories of false information that Fox distributed to its viewers include: 1) Dominion committed election fraud by rigging the 2020 Presidential Election; 2) Dominion manipulated the election vote counts through its software and algorithms; 3) Dominion is “owned by a company founded in Venezuela to rig elections for the dictator Hugo Chavez”; and 4) Dominion paid kickbacks to government officials who used its machines during the election. “In sum, Fox knew that its guests, Trump and his representatives, and even Fox’s own hosts were unreliable and could not be trusted to report accurately about the 2020 Presidential Election and Dominion.”

Dominion argues that Fox knew the statements were demonstrably false and that it acted with actual malice in relying on obvious unreliable sources to protect the size of its viewership and ratings for financial reasons. The claim of malice is supported by witness after witness testifying during discovery “that they saw no evidence to support the false claims against Dominion.” Fox unconvincingly argues no evidence of actual malice exists.

The record presented by Dominion clearly establishes that Fox knowingly disregarded the facts in favor of “what its audience wanted to hear.” Moreover, Fox knew that former President Donald Trump would claim the election was stolen before any ballot was cast but perpetuated the claim of election fraud “to keep people watching.” Fox’s continued refusal to retract its lies against Dominion is additional evidence of actual malice.

The mountain of evidence cited by Dominion convincingly establishes that Fox spread outlandish voter fraud claims and disregarded the truth about Dominion and the 2020 Election for financial reasons. But the damage to the public and its confidence in the election processes goes far beyond the Dominion case.

The First Amendment and the Federal Communications Act of 1934, as amended, bar the Federal Communications Commission from telling any licensee, such as Fox, how and what to broadcast. But the FCC has stated that “rigging or slanting the news is a most heinous act against the public interest.” The record establishes “that Fox did ‘have the facts’ before broadcasting its claims about Dominion, but it disregarded them in favor of what the audience wanted to hear.” The FCC is committed to investigating claims when it receives testimony or other documentation that a licensee or its management has engaged “in the intentional falsification of the news.” The facts in Dominion are sufficient to warrant an FCC investigation into the operation and federal license of the appropriate licensees.

It is ironic that the false statements about the 2020 election championed by Trump and Fox should lie at the center of the Dominion case. The irony is that Trump promised to “open up our libel law so that when they (the fake news media) write purposely negative and false articles, we can sue them and win lots of money.” Instead of suing for “lots of money,” the Fox News Network has been sued for knowingly promoting Trump’s false claims about the 2020 election being rigged.