Fox And Dominion Attorneys Wrap Up Arguments In Defamation Hearing, But No Ruling Yet From Judge – Update
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2ND UPDATE, 10:05 AM: A Delaware court judge did not rule in favor of either Fox or Dominion as each side seeks a ruling ahead of the election systems company’s $1.6 billion defamation suit.
During the past two days, attorneys for both sides have asked Judge Eric Davis to rule in their favor on motions for summary judgment, potentially forestalling a trial that is set to begin April 17.
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It’s unclear which way Davis will rule on the motions, but he told attorneys Wednesday that he will decide before a scheduled pre-trial hearing on April 11 “so you know how to narrow certain issues.”
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In this morning’s sessions, Fox’s attorney Erin Murphy argued that top executives of Fox Corp. and Fox News were not liable for the alleged defamation because they were not directly involved in the decision-making over what to put on the shows.
She pointed to a recent decision by a federal appellate court in a defamation case brought by coal executive and then U.S. Senate candidate Don Blankenship, who sued Fox News, CNN and other news outlets after they referred to him as a “felon.” In fact, Blankenship served 12 months in prison on a misdemeanor charge stemming from a 2010 mine disaster.
In trying to prove actual malice, Blankenship had identified a 2018 email that Fox Corp. executive chairman Rupert Murdoch had sent an email to two senior executives at the network saying, “Both Trump and McConnell appealing for help to beat unelectable former mine owner who served time. Anything during day helpful but Sean and Laura dumping on him hard might save the day.” But an appellate court found that there was not a sufficient link between Murdoch’s correspondence and the alleged defamatory statement.
Murphy said that senior executives “need to be involved in the show,” adding that there is “zero evidence that someone at Fox Corp. is saying, ‘We are doing to tweets of Lou Dobbs.'”
Although Fox Corp. CEO Lachlan Murdoch attended an editorial call, Murphy said, that was a “rare moment.” Among the documents disclosed were emails that Rupert Murdoch sent to Fox News Media CEO Suzanne Scott. Among them was a Nov. 11, 2020 email in which Murdoch wrote that Rudy Giuliani had to be taken “with a large grain of salt.” Giuliani, though, continued to appear on air.
“Actual malice is not, ‘Should you have stepped in or could you have stepped in. It is, were you involved?” Murphy said.
But Dominion attorney Justin Nelson said that Murdoch’s involvement was different in the Blankenship case in that there was no evidence that he knew it was false to say that the mine owner was a convicted felon. In this case, Nelson said, there is evidence that Murdoch and other executives knew that what Giuliani and Powell would say when given the network’s platform, and with little regard for accuracy.
Dominion’s lawyers challenged the network’s defense that they were merely covering the allegations of vote rigging by the sitting president and his attorneys. They noted that Powell, who first made the claims about Dominion on Maria Bartiromo’s show on November 8, 2020, was not actually on Trump’s legal team as she was shut out of discussions.
“She was auditioning,” said attorney Stephen Shackleford. “Sidney Powell was looking for someone to make her relevant, and Fox made her relevant.”
Later that month, the Trump team actually disavowed Powell.
Dominion attorneys also focused on a fact check that was done by the so-called “Brain Room” at Fox News. They concluded on November 14 that the allegations of vote rigging were unfounded. But the network continued to feature Powell and Giuliani as guests, Dominion attorneys noted.
Many of the headlines surrounding the case have been due to the release of a trove of internal Fox News emails, text messages and communications, offering a glimpse into the network’s scramble after the 2020 election. Many of the documents contained redactions, and on Tuesday, a lawyer for The New York Times argued to Davis to remove at least some of the blacked out information. She challenged Fox’s argument that some of the redactions were to protect propriety information on “journalistic processes,” while a Dominion attorney claimed that Fox was blacking out “embarrassing information.”
Davis has not ruled on that issue, either, but he seemed to accept the notion that there was some credence to the idea that information about the network’s news gathering process is akin to protecting confidential business information.
Fox News released a statement following the conclusion of the arguments. “Despite the noise and confusion that Dominion has generated by presenting cherry-picked quotes without context, this case is ultimately about the First Amendment protections of the media’s absolute need to cover the news. Fox will continue to fiercely advocate for the rights of free speech and a free press,” a spokesperson for the network said.
UPDATED, March 21 PM: As hosts like Maria Bartiromo, Jeanine Pirro and Lou Dobbs amplified claims that Dominion Voting Systems was engaged in vote rigging during the 2020 election, reasonable viewers could discern that they were allegations, not proven fact, Fox’s attorney argued Tuesday in a Delaware court.
Erin Murphy told a judge that the Fox News hosts, who featured figures like Sidney Powell and Rudy Giuliani in the weeks following the election, were seeking out Donald Trump’s representatives to elaborate on the then-president’s claims.
“A reasonable viewer would understand that an interview is not a representation that the guests’ statements are true,” she said.
She said that “what matters is whether the press accurately reports the allegations, not whether the underlying allegations are true or false.”
Dominion and Fox are asking Judge Eric Davis to rule in favor of their motions for summary judgment, a move that may avert a trial in the election systems company’s $1.6 billion defamation suit. Both sides presented oral arguments Tuesday, and those continued into Wednesday.
Davis asked multiple questions of Murphy as she went through post-election coverage, show by show. Dominion in its $1.6 billion lawsuit has singled out 20 different instances of defamation on Fox News shows, including multiple instances made by Dobbs, who was perhaps the leading figure at the network in featuring the election-rigging claims.
“There seems to be a Dobbs problem,” Davis said.
Dobbs tweeted on November 14, a week after Joe Biden was declared the winner, that if you “read all about Dominion and Smartmatic voting companies, you’ll soon understand how pervasive this Democrat electoral fraud is, and why there’s no way in the world the 2020 presidential election was either free or fair.”
Davis questioned Murphy’s contention that the tweet did not clearly link Dominion to voter fraud, and she pointed to past concerns that the company’s systems could be hacked.
Dobbs also tweeted on December 10, “The 2020 Election is a cyber Pearl Harbor: The leftwing establishment have aligned their forces to overthrow the United States government #MAGA #AmericaFirst #Dobbs.” The tweet linked to a document that made a number of false claims about Dominion and Smartmatic, the latter another voting company that also is suing Fox.
Murphy contended that a “reasonable viewer would understand this came from a document [from someone] other than Lou Dobbs.”
Davis suggested that there was a conflict in Fox’s embrace of the “neutral report privilege,” that it was simply covering newsworthy events, yet hosts also seemed to be taking a partisan stance. The judge questioned how Dobbs could be merely covering allegations, pointing to the pro-MAGA and pro-AmericaFirst hashtags in his tweet. A similar tweet from the same day promoted his interview with Powell, with Dobbs writing that she “reveals groundbreaking new evidence indicating our Presidential election came under massive cyber attack orchestrated with the help of Dominion, Smartmatic and foreign adversaries.”
“You’re saying he’s a neutral reporter?” the judge asked Murphy.
Murphy said that the hashtags, were an expression of Dobbs’ opinion, but they were not the same as him writing a hashtag like #electionfraud, which he did not do.
As Fox News started to face litigation over its post-election coverage, Dobbs’ nightly Fox Business show was pulled in February 2021.
Murphy pointed to instances where hosts were clear that they were talking about allegations. On the November 21 broadcast of Justice with Judge Jeanine, host Jeanine Pirro said that “the president’s lawyers alleging a company called Dominion, which they say started in Venezuela with Cuban money and with the assistance of Smartmatic software, a backdoor capable of flipping votes.” The claim was unfounded, but Murphy said that Pirro was merely pointing out allegations and then offered her opinion that these were “serious” claims but “the media doesn’t have interest in this.”
Dominion contends that by that point, they had sent out emails to Fox News executives debunking the claims, while executives with oversight over Pirro’s show believed that they were bogus.
Later in the afternoon, Murphy argued that Dominion has to show that those who actually were involved in the decision to broadcast the election fraud claims acted with malice. In trying to prove that the network knew the claims were false yet went forward anyway, Dominion has cited a trove of text messages and emails from top Fox executives, including Fox Corp. executive chairman Rupert Murdoch.
“They actually have to have been involved in the decision,” she said, adding that it cannot just be someone in the “chain of command.”
PREVIOUSLY, Tuesday AM: Dominion Voting Systems and Fox attorneys squared off in the next chapter of the landmark defamation case Tuesday in a Delaware courtroom, as each side is seeking a judge’s ruling that would deliver a victory and perhaps forestall a trial.
“Fox essentially made Sidney Powell a household name,” said Rodney Smolla, a First Amendment expert and attorney for Dominion, referring to the attorney who was one of the chief purveyors of the false voting fraud rigging claims. Smolla also said that Fox had a role in elevating two others making similar allegations, Rudy Giuliani and Mike Lindell.
Dominion’s attorneys spent the morning trying to show how Fox bore responsibility for spreading false claims about the company, even as the network has argued it was merely covering a newsworthy topic ultimately in the public interest: a president’s contention that the election was rigged.
Fox News executives and hosts were well aware that the claims were bogus, but didn’t stop guests from spreading them and hosts from endorsing them, Dominion’s attorneys argued. They pointed to one text exchange in which host Maria Bartiromo, responding to some of the election-rigging claims, wrote, “OK, Sidney will say it tomorrow,” referring to Powell. But producers and those overseeing Bartiromo’s show did not believe the election-stealing claims, one of Dominion’s attorneys argued, citing a message from Fox Business executive Gary Schreier that Bartiromo “has got conspiracy theorists in her ear.”
Smolla said that there was a “deliberate decision for those responsible for the broadcasts to let the story be out there … to release the Kraken.” The latter was a reference to one of Powell’s declarations at a now-infamous press conference with Giuliani.
Driven by a desire to win back Trump-supporting viewers, Fox News helped “start a new narrative that the election was stolen and Dominion was the thief responsible for it being stolen.”
Smolla said that court precedent does not support Fox News’ argument that it is protected by the neutral report privilege, or the concept that it was protected from defamation claims because it was merely covering what Donald Trump’s lawyers were claiming about Dominion.
Smolla cited common law that “when you make a defamatory statement that originates from someone else, you adopt it as your own. You own it.” Fox News figures like Lou Dobbs were not neutrally reporting on allegations made by their guests, but they “espoused what was being said, they endorsed what was being said.”
He also said that the “real damage” to Dominion’s reputation was through Fox’s giving a platform to Powell and others to make the false claims. “It was Fox’s repetition that gave it the resonance and the gravitas,” he said.
The Supreme Court’s landmark 1964 ruling in New York Times vs. Sullivan, the basis for current defamation law, actually “articulated that there are multiple interests that ought to be balanced.” The court also has recognized that defamation law not only gives protections to news outlets, but “protects the public as well from falsehoods.”
Dominion must prove that Fox News and parent Fox Corp. acted with actual malice — they knew the accusations were false but broadcast them any way — or that they had reckless disregard for the truth.
Another attorney, Justin Nelson, argued that there was ample evidence to show that Fox News executives and hosts knew what their guests were going to say, yet booked them anyway and did not fact check them.
In fact, Nelson claimed that senior Fox executives “made a decision to let” hosts “run wild” with the election claims and “shut down” talk of fact checking.
Nelson said that there were 3,682 individual communications that Fox received from Dominion pointing to the falsity of the claims. The emails were so pervasive, he noted, that one executive, senior VP David Clark, even quipped that they had been “tattooed to my body.” He also pointed to the network’s own internal fact checkers, called the “Brain Room,” found that the claims were unfounded. He cited an email that Lauren Petterson, the president of Fox Business, sent on Nov. 5 about the ease of checking the election fraud claims and debunking them. She wrote, “Does anyone do a f—ing simple Google search or read emails?”
Clark, Nelson said, “knew the conspiracy theories were bogus and the election was correct,” and made the decision to pull Jeanine Pirro’s Nov. 7 show because he did “not trust her to be responsible.” But he saw a pre-tape of Maria Bartiromo’s show the next day, with Powell as a guest, but did not pull it.
Nelson went through a series of internal messages — many of which have been made public in recent weeks — showing that Fox personalities expressed alarm over the wild claims being made by Trump allies. Tucker Carlson, he noted, wrote on Nov. 17 that what Powell was saying was “cruel and reckless, and later wrote that host Lou Dobbs was “reckless.” Carlson also used “very graphic language” about what he really thought about Powell, and in one instance wrote that she was “lying.”
“It is rare for a defendant to admit” hat they knew what was being broadcast was false, Nelson said. “Here we have that for multiple people for multiple shows.”
Nelson said there also was ample evidence to show that Fox Corp. was liable, pointing to texts and emails in which Rupert Murdoch and Lachlan Murdoch give input to Fox News executives about coverage. Rupert Murdoch wrote in one email on Nov. 16 that Giuliani should be “taken with a large grain of salt,” but he continued to land guest spots.
The Dominion attorney said that there is no actual malice defense for putting such guests “on the air, knowing what they are going to say and not calling them false.”
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