In recent days, the media largely rendered its verdict that Fox News defamed American democracy by entertaining 2020 election lies that even Rupert Murdoch described as “really crazy stuff.” Indeed, the 192-page summary judgment brief (read here) in Dominion v. Fox News is filled with explosive communications between the network’s executives and top talent exchanging their private disgust and disbelief over some of the conspiracy theories that Sidney Powell and Rudy Giuliani, among other deplorables, were allowed to express on air.
But the nuances of this defamation case are quite a bit more complicated than last week’s sensational headlines. Take Maria Bartiromo’s harebrained comment on her show: “I have never seen voting machines stop in the middle of an election, stop down, and assess the situation.” Delaware Supreme Court judge Eric Davis will have to determine whether that was a false assertion of fact or some sort of color commentary. Did the statement actually assert a damaging implication about Dominion Voting Systems? Was there evidence of actual malice?
It’s the “actual malice” standard (knowledge of falsity or reckless disregard for the truth) that will likely decide this $1.6 billion suit. And despite Murdoch’s wish that the outcome turn on the newsworthiness of what Trump’s lawyers were saying, it’s this hard-to-meet standard which gives Fox News its best hope of escaping liability. This is why Dominion cited the text exchanges of Sean Hannity, Tucker Carlson, and Laura Ingraham, among other fruits of a two-year-long discovery process. (My favorite moment from the summary judgment brief is how Bartiromo plays along after Powell tells her that Antonin Scalia was killed in a “human hunting expedition.”) This evidence reflects the inner thinking of Fox’s talent and is pretty scandalous, but does stuff like Carlson’s bid to get a reporter fired for having the temerity to fact-check a tweet from Trump shed light on the decisions to air objectionable content about Dominion?
Dominion presents some intriguing, if slippery, arguments regarding Fox’s editorial behavior. The plaintiff argues, for instance, that if some of the network’s employees realized that claims being made on air weren’t true, then that demonstrates the reckless disregard of colleagues who broadcast them. Dominion also insists that Fox News essentially endorsed the on-air quackery of guests like Powell and Giuliani by repeatedly booking them and rarely offering pushback. Perhaps most provocatively, Dominion’s attorneys suggest that actual malice can be inferred by how Fox News attempted to appease viewers who were being drawn to competitive right wing networks, like Newsmax. This stuff is hardly vanilla defamation law.
We’ll see if the judge will be swayed by the reasoning. My educated guess is that neither Dominion nor Fox News scores a knockout victory from this summary judgment phase, wherein Judge Eric Davis will determine what issues can be argued before a jury. Davis has yet to set a date for oral arguments on this motion, and neither side seems too concerned about that. Sometime between now and mid-April, the judge will probably deliver a mixed decision that narrows the scope of the trial—assuming there is a trial at all.
Back in July, I theorized that this case was headed for a settlement, thanks to the possibility of punitive damages, the availability of insurance, and finally, Murdoch’s need to avoid embarrassment. But those I speak to inside the Fox News camp tell me they expect a trial, and even more intriguing, they are already gaming out an appeal. Based on what we’ve seen this past week—namely, the Murdoch family’s apparent willingness to endure the exposure of private conversations between the network’s talent—a trial is looking more and more likely.
