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?