Dominion's defamation suit against Fox News heats up

Fox Corp. headquarters in New York City.

March 21, 2023 5:22 PM PT

WILMINGTON, Del. — Attorneys for Dominion Voting Systems hammered away at Fox News’ assertions that its reporting on false information about alleged voter fraud in the 2020 election was protected by the 1st Amendment during a court hearing Tuesday.

The two sides went before a Delaware judge seeking summary judgments in the Denver voting machine maker’s defamation case ahead of an expected jury trial in mid-April.

Dominion is seeking $1.6 billion in damages, claiming Fox News deliberately aired former President Donald Trump’s false claims of voter fraud in the 2020 election to placate its viewers, who were fleeing the network in anger over how it called the state of Arizona for President Biden.

“They had to do something to try to get the viewers back and what they did to get viewers back was start this new narrative that the election had been stolen and that Dominion was the thief responsible for stealing the election,” said Stephen Shackelford, an attorney for Dominion.

Fox News has argued the allegations by Trump and his representatives were newsworthy — even if untrue — and that the network’s reporting was protected by the 1st Amendment. The network has cited “neutral reportage privilege,” which protects media organizations against libel claims if they accurately and objectively report newsworthy charges made against public figures as part of an ongoing controversy.

But Dominion’s legal team said in court Tuesday that Fox News has gone far beyond that realm, as it presented the voter fraud claims and Dominion’s alleged involvement well after they were dismissed by government agencies and journalists inside the network.

Trump’s legal team of Rudolph Giuliani and Sidney Powell appeared on Fox News in the months following the 2020 election, presenting such unproven allegations as Dominion being founded in Venezuela to aid Hugo Chávez and that its machines manipulated votes to favor President Biden. Such claims often went unchallenged on the network in the weeks after the election when presented by Trump’s allies, despite evidence to the contrary.

The hearing reviewed much of the court documents and deposition testimony connected to the case, in which Fox News anchors, producers and executives — including boss Rupert Murdoch — are cited for allowing the false claims to air while expressing their own skepticism and downplaying the reporting by some of the network’s journalists and hosts who disputed the allegations.

Erin Murphy, an attorney for Fox News, argued that the network’s hosts always presented the statements by Powell and Giuliani as unproven allegations, repeatedly asking for evidence that was never provided. She said “reasonable” viewers would assume that the allegations were not being presented as fact.

“The hosts followed up not by saying, ‘Wow that must be true,’” Murphy said. “They simply asked, ‘how fast are you going to bring these suits?’ and ‘what evidence do you have to support them?’”

But Dominion noted how the falsehoods were embedded into the programs, such as Maria Bartiromo’s “Sunday Morning Futures,” where the anchor set up an interview with Powell by teasing that the lawyer had “some fascinating revelations” and “Ms. Powell will explain what she has unearthed.”

Shackelford said such statements by Bartiromo “clearly signals what you are about to hear are some facts.”

Dominion attorneys noted how Fox News shows continued to book Trump lawyers Powell and Giuliani and allowed them to make false statements, even though it was accepted by many of the executives and hosts that there was no massive fraud and the election was legitimate.

Dominion cited deposition testimony from David Clark, a Fox News executive in charge of weekend programming, who acknowledged on Nov. 6, 2020, that the election was fair. But the programs he oversees, including “Sunday Morning Futures” with Maria Bartiromo, continued to put Giuliani and Powell on her program . Bartiromo repeatedly asked for evidence, but offered no pushback to the overall thrust of the false claims.

Dominion attorneys also pointed out how Fox News executives could have edited or corrected misinformation before the programs featuring Powell were rebroadcast, but chose not to — a point that some legal experts believe is among the strongest pieces of evidence in the case.

Fox News attorney Murphy said the network hosts cited in the suit never presented the allegations as factual and that a “reasonable viewer” would not interpret them that way.

Murphy also challenged the notion that Fox News acted with malice by knowingly promoting false claims, saying there is no evidence that any of the executives at parent company Fox Corp. were directly involved in the editorial content on the network. Fox News leaders such as chief executive Suzanne Scott were described as being “rarely involved in content” decisions at the network.

Fox News host Tucker Carlson was among the Fox News insiders who bemoaned Powell’s appearances in private messages entered into testimony such as, “It’s unbelievably offensive to me. Our viewers are good people and they believe it.”

But Carlson’s actions also are under scrutiny in the case. When he had My Pillow owner Mike Lindell — the biggest advertising spender on Fox News — appear as a guest in January 2021, the Trump-supporting mogul continued to promote voter fraud conspiracy theories.

Murphy argued that Lindell was booked on Carlson’s program to discuss cancel culture after being banned from Twitter. Carlson testified in his deposition that he did not know Lindell was intent on raising his election fraud allegations and did not engage with him when he did.

Murphy tried to thread the needle even further, saying Lindell mentioned “machine fraud,” but did not name Dominion and therefore viewers would not have assumed he was talking about the company.

The emails and texts from Fox News employees entered into evidence have become a public source of embarrassment for the network as it creates a portrait of a media organization that cares more about satisfying its partisan viewers than presenting factual news.

The legal battle is only becoming uglier for Murdoch’s network after a Fox News producer filed a discrimination lawsuit Monday against her employer, Carlson and several of his producers, alleging the “Tucker Carlson Tonight” operation was rife with sexist, misogynistic and bullying behavior.

The producer, Abby Grossberg, joined the staff of Carlson’s show as head of bookings last September after nearly three years as a producer and booker for Bartiromo’s “Sunday Morning Futures.”

In a federal court lawsuit filed in Manhattan, Grossberg alleges that Fox appeared to be positioning her and Bartiromo to become the scapegoats for the defamation claims brought by Dominion. Her suit asserts that Fox News attorneys “intimidated” her during prep sessions for her deposition in the Dominion case.

“Fox News Media engaged an independent outside counsel to immediately investigate the concerns raised by Ms. Grossberg, which were made following a critical performance review,” a Fox News representative said in a statement. “Her allegations in connection with the Dominion case are baseless and we will vigorously defend Fox against all of her claims.”

Staff writer Meg James in Los Angeles contributed to this report.