Did Rupert Murdoch Blow Up Fox News's Defense in the Dominion Case?

new york, ny july 21 rupert murdoch c leaves the news corporation building with his son lachlan murdoch r on july 21, 2016 in new york city rupert murdoch is taking over as chairman and ceo of fox news channel after former chairman and ceo roger ailes departed the company today amid sexual harassment charges photo by kevin hagengetty images
Did Rupert Murdoch Blow Up Fox News's Defense?Kevin Hagen - Getty Images

When Dominion Voting Systems unleashed an absolute broadside against Fox News last week via court filings in its defamation suit against the network, the strength of the defamation claim was almost secondary. The biggest story for our body politic is what the revelations demonstrate about the stars and executives at a network that has been pulling at the threads of our democratic quilt for decades now: they have absolute disdain for their viewers, such that they felt comfortable feeding them some absolute slop that they themselves did not believe. It's enough to make you wonder whether they really think Democrats are orchestrating an INVASION! of undesirables to destroy the America you know and love, or whether they're just saying that to keep people enraged—and watching.

Monday evening brought more filings in the case, however, and these seem to have further bearing on the defamation claim. Since I covered the last round of public legal maneuvering, Fox reached out to me to offer their opposition brief and a statement last night.

"Dominion’s lawsuit has always been more about what will generate headlines than what can withstand legal and factual scrutiny," it read, adding that Dominion has been forced to lower the dollar value of the damages it is seeking. But then it got into the crux of Fox's defense: "Their summary judgment motion took an extreme, unsupported view of defamation law that would prevent journalists from basic reporting, and their efforts to publicly smear FOX for covering and commenting on allegations by a sitting President of the United States should be recognized for what it is: a blatant violation of the First Amendment."

rupert murdoch names roger ailes as the head of fox news, new york, new york, january 30, 1996 photo by allan tannenbaumgetty images
Murdoch launches Fox News alongside another charmer, Roger Ailes, in 1996.Allan Tannenbaum - Getty Images

It continues: "Dominion’s briefing lays bare just how extreme its view of the law is. According to Dominion, the press is liable for reporting newsworthy allegations made by the sitting President of the United States even if the press makes clear that the allegations are unproven and that many people contest them...[as] one of Dominion’s own lawyers explained before Dominion filed suit: 'It is unthinkable that any competent plaintiff’s lawyer would advise a client to sue the likes of CBS, FOX, or CNN for live transmission of the defamatory remarks uttered by, let us say, President Trump.'"

This is the crux of the Fox defense: We were merely reporting on allegations made by the president and his lawyers, which were inherently newsworthy, and all this is protected by the First Amendment. Many defamation defenses are rooted in the Supreme Court's ruling in New York Times v. Sullivan (which the conservative movement is broadly interested in destroying) that, to simplify things, a news outlet is not committing defamation unless it knowingly publishes false and damaging information, or it has a reckless disregard for the truth. Fox is not focusing on these points, probably because the texts and emails Dominion dug up in discovery proceedings are pretty damning. Many people at Fox clearly knew the stolen election claims were false in real time, so Fox is contending that its employees were just reporting on what the sitting president was saying.

Where we start to get to shakier ground is the claim here, made indirectly, that Fox made clear that the allegations were unproven. But ultimately, the relative firmness of said ground may be secondary, because Fox's own head honcho, Rupert Murdoch, may have planted a bomb under it in his deposition for this case. Here's the relevant section of his testimony:

Q. You are aware now that Fox did more than simply host these guests and give them a platform; correct?
A. I think you've shown me some material in support of that.
Q. In fact, you are now aware that Fox endorsed at times this false notion of a stolen election?
A. Not Fox, No. Not Fox. But maybe Lou Dobbs, maybe Maria, as commentators.
Q. We went through Fox hosts Maria Bartiromo, yes?
A. Yes. C'mon
Q. Fox host Jeanine Pirro?
A. I think so.
Q. Fox Business host Lou Dobbs?
A. Oh, a lot.
Q. Fox host Sean Hannity?
A. A bit.
Q. All were in that document; correct?
A. Yes, they were.
Q. About Fox endorsing the narrative of a stolen election; correct?
A. No. Some of our commentators were endorsing it.
Q. About their endorsement of a stolen election?
A. Yes. They endorsed.

Murdoch is careful to say the network did not endorse the stolen election claims, but he concedes that its employees endorsed them on air. (Fox's lawyers argue elsewhere that the hosts were just offering "independently protected opinion," but Fox broadcast these claims consistently for months.) This is a materially different situation from those employees airing the sitting president's claims, or even hosting his lawyers to spew that crapola. It's exceptionally difficult to win a defamation case in this country, and Fox is correct in its statement that this high bar constitutes a healthy interpretation of the First Amendment. Britain's libel laws quell speech, even about powerful people with plenty of recourse to combat what they consider false claims.

But it appears that the network's overlord, an immigrant who came to this country to oversee—among other charming things—a sprawling hate campaign against other immigrants, has done some pretty significant damage to his company's own case. Oh, and the country. We should never forget that these same lies fueled a violent attack on the national legislature, part of a general tearing at the fabric of our society. Donald Trump did not just say the election was stolen. He said the country was being stolen away. As the previous filings in this case revealed, Fox News did its part to push this crap in order to maintain its market share. Now that's American.

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