The defamation case that could change our delivery of the news and political dialogue

The coming case starting in Delaware Superior Court could change the whole nation in the delivery of our news. In the new world of social media and the role of communication - defamation has become lost to the concept of inaccurate and quick news reporting for profits and followings. Everyone is familiar with the claims made by a number of Fox News people that the last Presidential election was rigged or fixed by certain people and the Dominion voting system. The Dominion v. Fox case may be the most important case of the next decade in the way our country delivers news to the public. It could also set a new stage for the law of defamation.

The Dominion v. Fox case could also materially affect the criminal proceedings against former President Donald Trump and his associates presently being investigated by Special Prosecutor Jack Smith.

Dominion is a Canadian voting machine company with U.S. headquarters in Denver, Colorado. During the 2020 elections its voting systems, certified by the U.S. Election Assistance Commission (EAC), were used in over 23 states. Those systems include paper ballot backup to verify results. Dominion machines were used in so-called "swing" states, Arizona, Georgia, Michigan, Wisconsin, and several counties in Pennsylvania.

When the votes of the November 2020 election were finally counted, Biden had won with 306 Electoral College votes against Trump's 232. The Electoral College votes of the swing States made the difference. On Nov. 12th, the EAC reported that there had been no significant irregularities in the election.

Many of Trump's allies and others met and agreed to challenge the integrity of the Dominion machine votes, alleging that they had been "rigged" to shift thousands of Trump votes to Biden. They asked Republican leaders in the six swing states to meet on Dec. 14th to elect "alternate" slates of Trump electors to challenge the slate of electors who were certified by their respective Governors to vote for Biden.

Trump and his allies anticipated that when the Electoral College votes were to be formally confirmed by the Congress on Jan. 6, 2021, Vice President Pence would send the certified slates and the Trump-created slates back to their state legislatures for "review."

The Trump challenge failed when Pence determined that the Constitution required him to count the votes certified by the states. Pence, who for four years had been loyal to Trump, refused Trump's demand that he not count the ballots of the "swing" States. Trump sent a tweet to his followers that "Mike Pence didn't have the courage to do what should have been done."

During the period between Nov. 3, 2020, and Jan. 6, 2021, Trump, his supporters and Fox News and their reporters told the American people over broadcast news a number of false claims that the Dominion voting machines had been rigged and had shifted thousands of votes from Trump to Biden.

Participants in these falsehoods have been a number of Fox television personalities, Tucker Carlson, host of Fox's Tucker Carlson Tonight, Lou Dobbs, host of Lou Hobbs Tonight, Sean Hannity, host of Hannity, and Jeanine Pierro, host of Justice with Judge Jeanine. Fox hosts repeatedly hosted Trump's attorneys Rudy Giuliani, Sidney Powell, and others in the weeks following the Presidential election. The Fox broadcasts following the election with their false accusations against Dominion reached millions.

As early as Nov. 12th, polls showed that over 80% of Trump voters believed that voting fraud had "stolen" the election from Trump. By January 2021, 64 separate lawsuits had been filed by Trump attorneys challenging the election results in the "swing" states. The Judges in all 64 cases, 11 of whom had been appointed by Trump, ruled that the lawsuits were without merit and should be dismissed.

Before filing a complaint, Dominion sent various Emails to Fox reporters and producers of various shows called "SETTING THE RECORD STRAIGHT" to disprove the false claims. Over and over, Dominion sent letters, made calls, etc., and the messages continued. Dominion spent millions to mitigate the harm and correct the Fox reporters false claims that many admitted to be false in private communications.

Finally, Dominion sued Fox, a Delaware LLC, in March, 2021 for defamation in Delaware Superior Court, citing the television broadcasts by Fox which had falsely alleged that the Dominion machines had been responsible for Trump's defeat. The complaint by Dominion contends that Fox intentionally provided a platform for guests that Fox's hosts knew would make false and defamatory statements of fact on the air; Fox, through Fox's hosts affirmed, endorsed, repeated, and agreed with those guest's statements; and Fox republished those defamatory and false statements of fact on the air, Fox's websites, Fox's social media accounts, and Fox's other digital platforms and subscription services. Dominion seeks punitive and economic damages for defamation per se.

In December 2021, Judge Eric Davis of the Delaware Superior Court, wrote a detailed opinion denying a Motion to Dismiss that is a full explanation of potential defamation. The Court covered every aspect of the defamation claim and defenses, including the law on privileges of neutral reportage, Fair Report, and the defense of opinion. Under New York law, the Court found none of the defenses applied. It is now before the Court for trial before a Delaware jury.

If the Dominion witnesses are able to convince a Delaware jury that Fox maliciously and falsely defamed Dominion, the damages could well be in the millions of dollars inasmuch as Dominion's reputation had been materially endangered, and for weeks Dominion employees have been stalked, maligned, and anonymously threatened with death.

More importantly, the testimony under oath by Dominion witnesses, and the admissions by Fox reporters that they knew the truth of the real facts could bring both the Fox employees and the false electors within the definition of co-conspirators to implicate them in seeing to criminally affect the Electoral College count and defraud the people of the United States.

As the testimony proceeds before the Delaware court in the next several weeks, U.S. Special Prosecutor Jack Smith and his team of prosecutors will be paying close attention and possibly consider which witnesses in Dominion v. Fox be subpoenaed before the Grand Jury of the District of Columbia in considering the possible criminal prosecution of Trump and certain co-conspirators.

The case is being handled by superb teams of lawyers on both sides, SUSMAN GODFREY for Plaintiff Dominion, and WINSTON & STRAWN leading for the Fox defendants. The Dominion v. Fox case will be talked about for many years by the press following in the footsteps of the U.S. Supreme Court decision in New York Times v. Sullivan, which in 1964 held that the First Amendment protects freedom of speech and the rights of public officials to sue the media only for defamatory statements made with "actual malice." Here, Dominion is not a public official, and there is no defense for malicious false material.