Fox News is being sued by an election tech company in a landmark defamation lawsuit—and many expect it to lose. In part one, we look at the lawsuit and its implications for the future of defamation law. Part two will be a lot more fun: we will look at what a defeat will do to Rupert Murdoch’s legacy—and his succession plans for his kids.
Researched by: Rachel John
What case is this?
The ‘stolen’ election: The core issue dates back to the early days of the Biden administration—soon after he was elected in 2020. A number of Fox News anchors and their guests made wild allegations about the election being stolen. And they accused two companies—Dominion Voting Systems and Smartmatic—of rigging the votes.
About Dominion: It is one of the largest providers of election technology in the US—offering voting machines, software for election databases and audits, and devices to scan and print ballots. Its tech was used in 28 states during the 2020 election. OTOH, Smartmatic makes voting machines. Both companies have sued Fox. But the first case that will soon be heard is the one filed by Dominion.
What Fox News said: Dominion’s lawsuit focuses on 20 on-air statements about the voting technology company made by either attorneys associated with Trump—Rudy Giuliani and Sidney Powell—or by Fox hosts Maria Bartiromo, Jeanine Pirro and Lou Dobbs. Powell, for example, said Dominion is “flipping votes in the computer system or adding votes that did not exist.” And this:
The money creating it came out of Venezuela and Cuba. It was created for the express purpose of being able to alter votes and secure the reelection of Hugo Chávez and then Maduro… It is one huge, huge criminal conspiracy that should be investigated by military intelligence.
That blatantly false ‘Venezuela’ line was pushed by Guiliani, as well: “It was formed really by three Venezuelans who were very close to the dictator Chávez of Venezuela and it was formed in order to fix elections.” Fox News anchors gave such views plenty of airtime—and some even appeared to agree with these wild allegations.
Fox, one of the most powerful media companies in the United States, gave life to a manufactured storyline about election fraud that cast a then-little known voting machine company called Dominion as the villain. After the November 3, 2020 Presidential Election, viewers began fleeing Fox in favour of media outlets endorsing the lie that massive fraud caused President Trump to lose the election. They saw Fox as insufficiently supportive of President Trump, including because Fox was the first network to declare that President Trump lost Arizona. So Fox set out to lure viewers back—including President Trump himself— by intentionally and falsely blaming Dominion for President Trump’s loss by rigging the election.
The key word here isn’t “falsely”—but “intentionally.” Proving Fox News disseminated lies isn’t enough to prove libel in the US.
Why? Isn’t broadcasting blatant lies bad enough?
Not quite. The First Amendment of the US constitution protects the right to free speech—for the individual and the press. In 1964, a landmark case—New York Times vs Sullivan—set the legal bar for public figures to prove defamation:
A plaintiff has to prove not just that a news organisation published false information, but that it did so with “actual malice,” either by knowing that the information was false or displaying a reckless disregard for the truth.
In the Sullivan case—which accused the Times of carrying an ad making false claims about the Alabama police—the Supreme Court made clear that ‘intent’ is key:
The presence of newspaper articles in the files “does not, of course, establish that the Times ‘knew’ the advertisement was false,” Justice Brennan wrote. The test of actual malice, he said, would be the “state of mind” of the employees “having responsibility for the publication of the advertisement.”
This is why it is incredibly hard to win a defamation case against a news organisation in the US.
And can Dominion prove ‘intent’?
In the words of a legal expert, the US Constitution is “fiercely protective” of free speech—but “draws the line at deliberate, defamatory lies.” Dominion has filed evidence in the form of private text messages and emails from Fox hosts and executives—showing that they knew the claims about rigged voting were false:
- Host Tucker Carlson texted one of his producers, saying “there wasn’t enough fraud to change the outcome” of the election—and more bluntly this: “Sidney Powell is lying.”
- Host Dana Perino, called the accusations levelled against Dominion “total bs,” “insane,” and “nonsense.”
- Chief political correspondent at Fox, Bret Baier told an executive: “We have to prevent this stuff... We need to fact check.”
- Host Laura Ingraham said to her colleagues Tucker Carlson and Sean Hannity, “Sidney Powell is a bit nuts. Sorry but she is.”
- Not one Fox employee deposed under oath said they believed the election was rigged. Sean Hannity declared: “I did not believe it for one second.”
- Even Fox owner Rupert Murdoch admitted in a deposition that he did not believe the claims being aired on his own network.
Is it enough? Many legal experts seem to think so:
What’s stunning in this case is that there’s so much evidence showing that Fox wasn’t just acting like an ostrich with its head in the sand, trying to avoid learning the truth, but affirmatively knew these conspiracy theories weren’t true.
The evidence also reveals a consistent and damning pattern. This isn’t about a single ‘bad apple’:
The case against Fox is in fact unusually strong. Defamation suits often concern the work of careless or sensationalist reporters slipping past fact-checking safeguards. Dominion’s allegations, by contrast, threaten to lay bare a deliberate corporate decision to ignore the truth and publish lies.
Fox’s defence: essentially rests on the First Amendment. Its lawyers claim:
Fox News says a victory for Dominion would be a blow to press freedom and expose outlets to liability simply for reporting on newsworthy allegations made by others. The network says Fox hosts didn’t know in the immediate aftermath of the election that fraud claims by Mr. Trump and his associates were false, adding that electronic voting machines have been a subject of controversy for years.
The network also argues that the so-called damning evidence presented by Dominion have been “cherry picked” out of context. And it is entirely reasonable to cover election-rigging claims by the president’s lawyers—which are inherently newsworthy.
So who’s expected to win this one?
Dominion’s evidence is unusually strong. It is one of the reasons this is expected to be a landmark case. The judge presiding over the case has already thrown out several of Fox’s key arguments:
Fox will not able to defend itself against the defamation charge by arguing that it was simply covering the news, nor can it say that the false claims of election fraud reflected their hosts’ and guests’ First Amendment-protected opinions, according to the judge’s ruling last month. Fox also can’t argue that there might be truth to the conspiracy theories nor that they had no effect on Dominion’s reputation. Evidence shows it’s “CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true,” Davis wrote.
But Dominion still has to prove malice—that Fox knew the stolen election claims were false when it aired them:
You’re allowed to be biased … you’re allowed to try to make money. And people should be able to disagree with each other in a newsroom. But if Fox anchors say they don’t believe X and then turn around and endorse X on air after expressing manifest disbelief in it, they have a real problem.
Important fact to remember: This is a jury trial—which is always unpredictable. And both sides are already getting ready to appeal. The case will likely end up at the Supreme Court—and set a whole new precedent. Trump appointees like Neil Gorusch have indicated a willingness to lower the bar for defamation cases:
What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets, has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.
Irony alert: Many liberals are just as happy to see Fox being served its just desserts. They too see this case as an opportunity to score a win against disinformation.
The bottomline: Coming up in part two: why Rupert Murdoch is worried—and the real-life ‘Succession’ drama likely to be unleashed by this case.
Reuters and Vox have the best guides to the case. New York Times has more on the original Sullivan case—and what it means for defamation law in the US. The Guardian and this LA Times column explain why Fox is vulnerable. The Atlantic has a good piece that warns liberals not to break out the popcorn—and why a defeat for Fox may hurt everyone.