The Case for Defamation in the Delaware Superior Court: Smartmatic vs. Newsmax in the 2020 Senate Judgment
The fate of a $1.6 billion defamation lawsuit against Fox News lies with a plainspeaking judge who knows how to play poker.
The judge of the Delaware Superior Court has often tried to temper emotions in the case between the broadcasting giant and the voting-technology company. Each side repeatedly has accused the other of acting in bad faith.
“If he were to be given a name in culture, it would be Cool Hand Luke,” says Joseph Hurley, a criminal defense attorney based in Wilmington who has argued before Davis but has no involvement with the case. “In court, he never shows any emotion, and I mean that in a good way.”
“Dominion has mischaracterized the record, cherry-picked quotes stripped of key context, and spilled considerable ink on facts that are irrelevant under black-letter principles of defamation law,” the network said. The motion for summary judgment is an extreme view of defamation law that takes account of the fact that there is no basis in the record.
The cases have had different results several times. In his ruling on Smartmatic’s case against Newsmax, Davis cited a Nov. 17, 2020 email sent by Dominion officials to Newsmax relaying evidence that, he said, “cut against the narrative that the election was stolen.”
Like Dominion, Smartmatic was the subject of false claims that its software had switched Trump votes to Joe Biden. Newsmax and Fox News had those claims broadcasted.
“Smartmatic’s allegations support the reasonable inference that Newsmax’s reporting was neither accurate nor disinterested,” Davis said.
John Culhane is a professor at Delaware Law School and he says it seems clear that the judge wasn’t having Newsmax arguments.
While Culhane, an authority on defamation law, cautions against drawing too strong a conclusion from the Newsmax ruling, he says Davis “is very clear and he’s very step-by-step when it comes to the law.”
Defending the Fox News Correspondence and Smartmatic in a New York State Appellate Court Filing of a Cosmic News Critique
The most prominent stars and executives at Fox News ridiculed claims of election fraud, despite the right-wing channel allowing lies about the presidential contest to be promoted on its air, according to a court filing.
Smartmatic also has sued Fox for $2.7 billion, but that suit is not as far along as Dominion’s. On Tuesday, a New York state appellate court rejected Fox News’ motion to have the Smartmatic case against the network and several of its stars dismissed. The ruling didn’t state a reason for dismissing claims against Fox Corp.
Smartmatic attorney Erik Connolly said it would file an amended complaint that “details the involvement of [Fox Corp. leaders] Rupert Murdoch and Lachlan Murdoch.”
Korzenik said that the law permits for bias in the media but not for false stories to be published. It puts Fox in real danger by putting them in actual malice crosshairs.
The First Amendment protects reporters in order to guarantee a “robust and unintimidated press” but he also says the amendment is not unlimited. He said a neutral reportage principle does not protect a publisher who “deliberately distorts” statements to “launch a personal attack of [its] own on a public figure.”
The legal filing also underscored how worried Fox News executives and hosts were in the immediate aftermath of the election of losing its viewership to Newsmax, a smaller right-wing talk channel that was saturating its airwaves with election denialism.
The Scenario for the Dominion-Dominion Correspondence: Why he’s not a snarky lawyer
The stakes could hardly be greater in the two cases. Davis does not want to amplify his profile. His court did not allow a photo of him to be made available for this story. And the judge has repeatedly sought to ensure an air of comity around the proceedings, a hallmark of the Delaware legal bar.
In a Feb. 8 court hearing in Dominion’s suit against Fox, Davis apologized to the rival legal teams, saying he had been surprised to re-read an email in which he said he came off as snarky.
He pinned it on his use of a pat phrase. Do you remember that sarcastic thing that judges say? Davis asked. ” ‘Don’t tell me I’m wrong.’ Which is what I want you to tell me.” It means that I’m making some kind of statement. That was not why I was doing it.
The Fox News Case Against Election Fraud: The Case against Donald Trump and the Campaign for a Free Speech and a Democratic Presidency
Fox News executives and hosts were not happy about the Trump camp’s claims of election fraud. Hannity even said Giuliani was “acting like an insane person” and Ingraham described him as “an idiot.” Murdoch said it was bad that Giuliani was advising Trump.
Ingraham called Trump campaign attorney Sidney Powell “a bit nuts.” Carlson, who famously demanded evidence from Powell on the air, privately used a vulgar epithet for women to describe her. A top network programming executive wrote privately that he did not believe the shows of Carlson, Hannity and Jeanine Pirro were credible sources of news.
There was no pretense that the allegations of election fraud were even serious among those Fox figures who had embraced the idea of a Trump presidency.
The core of the case is about freedom of speech and the press, which is protected by New York Times v. Sullivan, the network said.
“Please get her fired,” Carlson told Hannity over text message. “Seriously … what the f**k? It is necessary to stop immediately, like tonight. It’s measurably hurting the company.”
A person with direct knowledge of the matter told CNN that Heinrich was blindsided reading the details in the legal filing and was not aware of the efforts by top hosts behind the scenes to get her fired.
In another case, when host Neil Cavuto cut away from a White House press briefing where election misinformation was being promoted, senior Fox News leadership were told such a move presented a “brand threat.”
After Fox’s correct projection of Arizona for Joe Biden, network leaders schemed to woo back Trump supporters. Fox News chief executive Suzanne Scott texted Lachlan Murdoch, the Fox Corp co-chairman, that “the AZ [call] was damaging but we will highlight our stars and plant flags letting the viewers know we hear them and respect them.”
Some Fox News executives had criticized some of its top talent, according to the court filing. While interviewing the North Koreans, Jay Wallace said that they did a “more nuanced show” than the host of the program. Jerry Andrews, the executive producer of “Justice with Judge Jeanine,” referred to host Jeanine Pirro as “nuts.”
Fox News Revisited: The Cable News Story of Donald Trump’s Defamation of the Fox Cosmic Microwave Broadcasting Channel
Slaven Vlasic/ IANS; Carolyn Kaster/AP; Alex Brandon/ AP; Michael Brochstein/SOPA Images.
The network’s stars, producers and executives expressed contempt for the conspiracies, with the stars saying they were “mind-blowingly nuts” and the executives calling them ” completely bs.”
“It’s amazing how weak ratings make good journalists do bad things,” Bill Sammon wrote to the network’s Washington Managing Editor. Network executives above him stewed over the hit to Fox News’ brand among its viewers. Yet there was little apparent concern, other than some inquiries from Fox Corp founder Rupert Murdoch, over the journalistic values of fairness and accuracy.
Powell was the first to speak with Maria Bartiromo a few days after the election. Powell would become one of Trump’s most fervent legal advocates. In her deposition, Bartiromo acknowledged Powell’s claims didn’t have any evidence.
In a separate filing, also released to the public on Thursday, the cable network’s attorneys say Dominion’s ten-figure request for damages is designed to “generate headlines” and to enrich the company’s controlling owner, the private equity fund Staple Street Capital Partners.
The 1964 US Supreme Court decision gave Fox a high bar for committing actual malice because it knew what it was broadcasting was false or reckless disregard of the truth.
On Nov. 5, 2020, just days after the election, Bret Baier, the network’s chief political anchor texted a friend: “[T]here is NO evidence of fraud. None. There are allegations and stories. Twitter. Bulls—.”
Donald trump was among the most ardent proponents of election fraud on the air. He was forced out of Fox the day after Smartmatic filed its own $2.7 billion defamation case against the network.
His departure two months later was termed a retirement by Fox News; through an intermediary, Sammon has declined to comment on that, citing the terms of his departure.
While the legal experts cautioned that they didn’t want to see Fox News’ formal legal response, they all indicated that the evidence in the legal filing is a serious threat to the channel.
According to Floyd Abrams of Pentagon Papers fame, the recent revelations have putFox in a more precarious situation in defending against the lawsuit on First Amendment grounds.
A version of this article first appeared in the “Reliable Sources” newsletter. The evolving media landscape is chronicled in the daily digest.
Rebecca Tushnet, the Frank Stanton Professor of First Amendment Law at Harvard Law School, described Dominion’s evidence as a “very strong” filing that “clearly lays out the difference between what Fox was saying publicly and what top people at Fox were privately admitting.”
Tushnet said that in all of her years practicing and teaching law, she had never seen such damning evidence collected in the pre-trial phase of a defamation suit. Tushnet said he had no recollection of anything comparable to this. Donald Trump seems to be good at generating unprecedented situations.
David Korzenik, an attorney who teaches First Amendment law and represents a number of media organizations, said that the filing showed Dominion’s case against Fox News has serious teeth.
“The dream for a plaintiff’s attorney is what Dominion claims to have here,” Jones said, “smoking-gun internal statements both acknowledging the lie and deciding to forge ahead with perpetuating it.”
Jones said the evidence of knowing fakes is not something that is often seen. “When coupled with the compelling storyline that Dominion is telling about motivation — the evidence that at least some key players in the organization were actively looking to advance some election denialism in order to win back viewers who had departed — it makes for a strong actual malice storyline.”