Fox Corp. Defended in the Defamation Case against Fox News in the State of the Art, a Motion for Summary Judgment
There was a split screen. Fox became the last network to project Biden’s win of the presidency despite being the first to make the Arizona call that proved accurate. And while its reporters often unraveled election fraud allegations, many of Fox’s biggest stars tolerated, amplified and even embraced them, Dominion’s lawyers noted.
The evidence presented Monday by the voting tech company in a $1.6 billion defamation suit against Fox News and its parent company, Fox Corp., shows that that is the picture that emerges.
Delaware Superior Court Judge Eric M. Davis stated in a ruling yesterday that the contracts should be given to Dominion.
Murdoch denied in his deposition that the right-wing talk network endorsed the election of Donald Trump. But Murdoch conceded that Sean Hannity, Jeanine Pirro, Maria Bartiromo, and former host Lou Dobbs promoted the falsehood about the presidential contest being stolen.
Keller drew a distinction between a host of pre-scripted material for the show that is tied to a specific channel’s telecast and a network executive.
“That person is going to be far removed from the day-to-day operations of editorial control and discretion over the particular channel’s telecast,” he said. Beyond Scott, the executives whose contracts are being sought also include Jay Wallace, Fox News’ president and executive editor and Meade Cooper, the executive vice president of primetime programming, among others.
Nelson, the Dominion attorney, retorted by citing a document obtained from Fox that “talks about the daily editorial meeting that occurs, including almost all of these executives that we’re looking at right now.”
Fox said the company’s lawsuit has always been about what will generate headlines rather than what can endure legal and factual scrutiny.
The network said that Dominion had mischaracterized the record, cherry-picking quotes stripped of context and spilled ink on facts that weren’t relevant under defamation law. Their motion for summary judgment relies on an accounting of the facts that have no basis in the record to support it.
The court filing offered the most vivid picture to date of the chaos that transpired behind the scenes at Fox News after Trump lost the election and viewers rebelled against the channel for accurately calling the contest in Biden’s favor.
Murdoch said “not Fox, no” when asked if the network had endorsed the idea of a stolen election. Not Fox. But maybe Lou Dobbs, maybe Maria [Bartiromo] as commentators.”
Dobbs’ show on Fox Business – in which he routinely promoted baseless conspiracies about the 2020 election – was canceled a few weeks after the January 6 insurrection.
In recent weeks, Dominion has argued that Fox host Jeanine Pirro – a former district attorney and New York state judge as well as a Trump confidant – sits at the heart of its case. NPR previously revealed the existence of an anguished email from a Fox News producer begging colleagues to keep Pirro off the air because she was circulating lies about election fraud from dark corners of the Internet.
Fox News says that the cases of Smartmatic and Dominion are attempts to chill independent reporting and commentary because of the importance of American free speech principles.
Murdoch rejected that Fox News, as an entity, endorsed former President Donald Trump’s election lies. But Murdoch conceded that Sean Hannity, Jeanine Pirro, Maria Bartiromo, and former host Lou Dobbs promoted falsehoods about the 2020 presidential contest being stolen.
In that case, Murdoch is accusing a much smaller media outlet of defamation. He has forced the site to pay out for commentary that was highly critical before, and now it intends to use the suit as a test case for changes to the country’s libel law. Legal cover in Australia is not as good as it is in the U.S.
The fate of a $1.6 billion defamation lawsuit against Fox News is in the hands of a plain-speaking judge known for his poker face.
Delaware Superior Court Judge Eric M. Davis, a 12-year veteran of the state’s bench and former corporate attorney, has often sought to temper emotions in the contentious proceedings between the broadcasting giant and Dominion Voting Systems, a voting-technology company. Each side repeatedly has accused the other of acting in bad faith.
The criminal defense attorney who argued before Davis but has no involvement in the case says Cool Hand John would be the perfect name for him. “He always shows no emotion in court and that’s a good thing.”
The Newsmax-Dominion Case, Fox News, Neutral Reportage and the 2020 Election: A New York State Appellate Court Decision
The two cases are not always the same. The November email from officials from Dominion was used by Davis in his ruling to refute the idea that the election was stolen.
Like Dominion, Smartmatic was the subject of false claims that its software had switched Trump votes to Joe Biden. Those claims were broadcast on Newsmax, Fox News and elsewhere.
“Here, Smartmatic’s well-pled allegations support the reasonable inference that Newsmax’s reporting was neither accurate nor disinterested/unbiased,” Davis said.
“It seems pretty clear to me that [the judge] was not having any of the Newsmax arguments – and nor should he have, by the way,” says John Culhane, a professor at Delaware Law School.
Culhane cautions against drawing too strong a conclusion from Newsmax, but he says Davis is very step-by-step when it comes to the law.
The most prominent stars and highest-ranking executives at Fox News privately ridiculed claims of election fraud in the 2020 election, despite the right-wing channel allowing lies about the presidential contest to be promoted on its air, damning messages contained in a Thursday court filing revealed.
Smartmatic has sued Fox for over two billion dollars, but the suit is not as far along as that by Dominion. 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 dismissed claims against parent company Fox Corp, saying no cause was stated.
Connolly said it would file an amended complaint about the Murdochs’ involvement.
Much like Fox’s lawyers in New York and Delaware, Newsmax’s attorneys similarly cite a legal privilege, known as neutral reportage, allowing it to present “unprecedented allegations without adopting them as true, so that the public could draw its own conclusions” about “a news story of extraordinary public interest.”
While he notes the First Amendment protects reporters in order to guarantee a “robust and unintimidated press,” he also states the “First Amendment is not unlimited.” He said a neutral reportage principle doesn’t protect a publisher who deliberately distorts statements to launch a personal attack on the public figure.
The stakes could hardly be greater in the two cases. Davis doesn’t want to amplify his own profile. (Indeed, his court declined to make a photo of him 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 he apologized to the rival legal teams, saying he had been surprised to read an email where he said he came off as sarcastic.
He pinned it on his use of a pat phrase. “You know that typical sarcastic thing that judges say?” Davis inquired. Don’t tell me I’m wrong, just tell me if I’m wrong. It means that I’m making some kind of statement. That wasn’t what caused me to do it.
The messages, included in a legal filing as part of Dominion Voting System’s $1.6 billion lawsuit against Fox News, showed that Tucker Carlson, Sean Hannity, and Laura Ingraham brutally mocked lies being pushed by former President Donald Trump’s camp asserting that the election was rigged.
In one set of messages revealed in the court filing, Carlson texted Ingraham, saying that Sidney Powell, an attorney who was representing the Trump campaign, was “lying” and that he had “caught her” doing so. Sidney is a complete nut. No one will work with her. Ditto with Rudy.
The legal filing illustrated how worried Fox executives were in the immediate aftermath of losing their viewers to Newsmax, a smaller right-wing talk channel.
The network said that the case is about freedom of speech and the press and that it will generate a lot of noise.
After the election, a furious Trump attacked Fox News and encouraged his followers to switch to Newsmax. They did that at the end of the presidential contest. Fox News shed a chunk of its audience while Newsmax gained significant viewership.
Carlson asked Hannity to get her fired. So, what’s the f**k? I am shocked, and it needs to stop immediately. It’s measurably hurting the company.”
A person with direct knowledge of the matter told CNN that she was not aware of the efforts to get her fired, and that she was blindsided by the legal filing.
The team led by Raj Shah who was once a White House aide to Trump warned other corporate leaders of a “brand threat” after Cavuto refused to air the McEnany’s White House press briefings.
► Murdoch asked Fox News CEO Suzanne Scott to have Hannity say “something supportive” about Republican Sen. Lindsey Graham ahead of the 2020 election. Murdoch explained, “We cannot lose the Senate if at all possible.” Murdoch ordered the head of his network to aid the Republicans. This type of directive from an executive would be a big problem at an actual news network.
Fox News’ “Wave News” Correspondence Revisited: A Mediated Dispute about Fairness, Accuracy, and Peculiarity
Jason Koerner/Getty Images; Jason Koerner/Getty Images; Carolyn Kaster/AP; Alex Brandon/AP; Michael Brochstein/SOPA Images/LightRocket via Getty Images; Slaven Vlasic/Getty Images
Off the air, the network’s stars, producers and executives expressed contempt for those same conspiracies, calling them “mind-blowingly nuts,” “totally off the rails” and “completely bs” – often in far earthier terms.
Bill Sammon, the network’s Washington Managing Editor, wrote a private memo in December 2020, stating that good journalists do bad things when ratings are weak. The executives above him were angry about the hit to Fox News’ brand. There was no apparent concern over the journalistic values of fairness and accuracy, other than some inquiries from Murdoch.
The cable network’s attorneys stated in a separate filing that the company’s controlling shareholder Staple Street Capital Partners hopes to generate headlines and enrich them with the request for damages.
The Call to the Fox News Capitol: Donald Trump’s January 6, 2021 Call Toll-Thirring Call to Lou Dobbs’ Show
Baier was the network’s chief political anchor and just days after the election, he text a friend: “There is no evidence of fraud.” None. Allegations – stories. It’s on the micro- networking website, 140 characters or less. Bulls—.”
Sammon did not comment on the terms of his departure, despite it being termed a retirement by Fox News.
Fox News refused to air Donald Trump after his supporters attacked the US Capitol in January of 2021, according to court documents.
A source familiar with the work of the House select committee said they did not know that Trump made the call.
A panel wanted to account for Trumps movements, actions and phone calls on that day. His newly revealed call to Fox News shows some of the gaps in the record that still exist, due to roadblocks the committee faced.
“The afternoon of January 6, after the Capitol came under attack, then-President Trump dialed into Lou Dobbs’ show attempting to get on air,” Dominion lawyers wrote in their legal brief.
Fox executives had previously vetoed that decision, according to the filing. “Why? Not because of a lack of newsworthiness. An important event occurred on January 6. President Trump was the key figure that day and he was the sitting President.
If the Murdoch family was able to increase their stock value and hold on to their audience, then they would be ok with disrespecting our ability to peacefully transfer power in America.
A story about Haley, a successful South Carolina governor, and the Fox News investigation on First Amendment grounds: a major blow for Fox News
I’ve never met Haley, but from afar it seemed that she had a reasonably good story to tell — a successful South Carolina governor from 2011 to 2017, Trump’s first U.N. ambassador and the daughter of Indian immigrants. Following her mother’s migration to South Carolina, she earned a master’s degree in education and became a local public-school teacher. Her father, who was an electrical engineer, earned a degree from the University of British Columbia and then taught biology at Voorhees College for 29 years. They opened a clothing boutique on the side.
Legal experts cautioned that they would like to have a formal legal response from Fox News but they all said in no uncertain terms that the evidence in the legal filing represents a serious threat to the channel.
“It’s a major blow,” attorney Floyd Abrams of Pentagon Papers fame said, adding that the “recent revelations certainly put Fox in a more precarious situation” in defending against the lawsuit on First Amendment grounds.
The article first appeared in theReliable Sources newsletter. You can sign up for the daily digest to stay up to date with the media landscape.
According to Tushnet, the filing lays out the difference between what Fox was saying publicly and what top people at Fox were admitting.
Tuchnet said she had never seen evidence like that before the trial of a defamation suit. Tushnet said he didn’t recall anything similar 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.
“This is a pretty staggering brief,” Jones said. “Dominion’s filing here is unique not just as to the volume of the evidence but also as to the directness of the evidence and the timeline of the evidence.”
Murdoch’s conversation with Fox News prior to election night: Why the Fox news network didn’t air Giuliani’s ads
And Fox takes those calls. During the time prior to Donald Trump, I used to pitch stories to Fox producers in the green rooms. I know they are interested in religious liberty stories more than most mainstream media outlets. I was aware of the human-interest stories about vets and cops. Sometimes this was good — we need more coverage of religion in America, for example — but over time Fox morphed into something well beyond a news network.
Murdoch was asked if some of his talk hosts were supportive of the election. In hindsight, I would have preferred that we had been stronger in condemning it.
Murdoch admitted in a deposition that some of his top hosts were pushing election lies to his audience, which is one of the revelations in the Monday filing.
In the wake of the election, Murdoch wrote in an email to the New York Post’s Col Allan, describing election lies that Trump was pushing as “bulls**t and damaging.”
► Murdoch gave Jared Kushner “confidential information” about then-candidate Joe Biden’s ads “along with debate strategy” in 2020, the filing said, offering Trump’s son-in-law “a preview of Biden’s ads before they were public.” At most news organizations, this type of action would result in an investigation and disciplinary measures.
The documents show that the business model of the channel is not based on telling its audience why they are watching, it is about feeding them content that keeps them happy and watching.
Murdoch was asked if he could have stopped Fox News from airing Giuliani, a key Trump campaign attorney. “I could have,” Murdoch said. “But I didn’t.”
Emails and other communications introduced into the case by Dominion reflect deep involvement by the Murdochs and other Fox Corp. senior figures in the network’s editorial path.
“I’m a journalist at heart,” the elder Murdoch, who is just two weeks shy of his 92nd birthday, said in his deposition. “I like to be involved in these things.”
He was steadfast about his defense of the call of the key state of Arizona for Joe Biden on election night. Murdoch testified that he heard Trump shouting in the background while the then-president’s son-in-law told him the situation was bad.
Scott forwarded his recommendation to the top executive over prime-time programming, Meade Cooper. According to the filings, she canceled the show on the weekend because she worried guests would say the election was being stolen and it would be just a token.
By Nov. 13, Raj Shah, a senior vice president at Fox Corp, was telling Murdoch, Scott and Dinh of the “strong conservative and viewer backlash to Fox that we are working to track and mitigate.” After Election Day, positive views among Fox News viewers fell to the lowest levels we’ve ever seen.
Fox Corp. board director Anne Dias wrote to the Murdochs on Jan. 11, 2021. “I believe the time has come for Fox News or for you, Lachlan, to take a stance. It is an existential moment for the nation and for Fox News as a brand.”
“Just tell her,” said Murdoch. Fox News, which called the election correctly, is pivoting as fast as possible. We have to lead our viewers which is  not as easy as it might seem.”
On Jan. 26, Tucker Carlson had Lindell on his show. Rupert Murdoch told Dominion’s attorneys he could stop taking money for MyPillow ads, “[B]ut I’m not about to.”
Norm Eisen, a CNN legal analyst, said this is one of the most devastating depositions he has ever seen. “When you go beyond reporting and your chairman admits there was endorsement, then that opens you up to liability under the actual malice standard.”
“The evidence that’s been put into the public sphere so far looks like strong evidence that Fox knew the truth and decided to go with an alternate narrative,” Lidsky says.
Murdoch, meanwhile, conceded that Sean Hannity, Jeanine Pirro, Maria Bartiromo, and former host Lou Dobbs promoted falsehoods about the presidential contest being stolen.
Who is he? Rupert Murdoch is a media magnate and the Fox News Channel’s controlling owner (as well as one of the inspirations for the protagonist in HBO’s Succession).