Actual Malice: The Fox News Defamation Charged With False Voting Machines and Irregular Phenomenology
Conservative TV darlings Tucker Carlson, Sean Hannity and a slew of other Fox News stars and executives, including the network’s 92-year-old owner Rupert Murdoch, may soon have their days in court in what stands to be the biggest media trial since the 1980s.
Colorado-based Dominion Voting Systems, a tech company that manufactures electronic voting machines, is suing Fox News and its parent company Fox Corp. for defaming it in the weeks following the 2020 election and irreparably damaging its business.
In order to save Fox’s ratings, the hosts and executives knew that the voting machines were false, and that they acted recklessly with disregard for the truth. After being the first network to call the pivotal state of Arizona for Biden on election night, Fox News saw its audience numbers plummet. There were a lot of its viewers who were Trump supporters.
At Fox News it’s not certain who would be responsible for allowing statements to be made on air that do not meet the high bar of malice. During the trial, Fox will hammer on both of the points.
The First Amendment doesn’t protect broadcasters that knowingly or recklessly spread lies, according to a statement shared with NPR.
The high standard is known as actual malice. It’s meant to protect media outlets from being punished for reporting critically on powerful figures, including corporations and the government.
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“The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true,” Davis wrote, in a ruling last month that significantly narrowed the network’s avenues to mount a defense.
For example, Murdoch emailed Fox News CEO Suzanne Scott telling her that rival conservative network Newsmax needed to be “watched.” Tucker Carlson stated in one message that his viewers were good people and they believed in the election fraud claims.
Two of those guests were Rudy Giuliani, Trump’s personal lawyer at the time, and Sidney Powell, a Trump ally and attorney. (Dominion has separately sued both Giuliani and Powell but there have been no rulings in either of those cases.)
The whole thing seems insane and Sidney Powell won’t release the evidence. After the election, Carlson said to fellow hosts that he hated it.
• In April, Delaware Superior Court Judge Eric Davis said Dominion could compel Fox Corporation Chairman Rupert Murdoch and his son, CEO Lachlan Murdoch, to testify, in a big blow to Fox.
Gauging by what Fox has presented in court, the network’s attorneys maintain the election-technology company’s worth is nowhere near the $1.6 billion Dominion is asking for.
Fox says that Dominion cherry picked damaging information ahead of the trial. But the evidence that has emerged suggests that Fox’s desire to cater to the beliefs of its viewers, even with untrue information, is closely allied to Trump’s own approach and reflects the way in which the Republican Party has been loath to antagonize the ex-president’s supporters.
Jones was referring to Abby Grossberg, a former producer for the news outlet who claimed Fox lawyers bullied her into protecting the network and its on-air personalities in her deposition for the Dominion case. She has escalated her own lawsuit against the company, adding CEO Suzanne Scott as defendant and accusing the company’s lawyers of deleting messages from her phone.
Davis said that the Murdochs were relevant to both parties. Fox was trying to block Dominion from having the Murdochs on the witness stand.
That could be a big hit to Fox. Fox Corporation, a right-wing news outlet, has $4 billion of cash on hand, according to its latest earnings statement. It is not known what insurance policy the company has or how much insurance it has.
Fox argued in a statement the case is about protecting “the rights of the free press” and a verdict in favor of Dominion would have “grave consequences” for the fourth estate.
The damning behind-the-scenes communications were included in roughly 10,000 pages of court documents that have been made public as part of the lawsuit, many of which are likely to be shown in the trial.
Tucker Carlson vs. Joe Biden at the 2020 Election: Disciplinary Investigations in the Dominion Voting Systems Network
Tucker Carlson said in a text message that he hates Trump. Tucker Carlson stated in one November 2020 exchange that Donald Trump had been trying to look away and that his snub of Joe Biden was destructive.
On Nov 14, 2020, Fox Corp. executive chairman Lachlan Murdoch, Rupert’s son, warned chief executive Suzanne Scott about the tone of Fox’s coverage of a pro-Trump rally.
The start of the trial was announced by the Delaware Superior Court, but it was not scheduled to begin until Tuesday.
“The Court has decided to continue the start of the trial, including jury selection, until Tuesday, April 18, 2023 at 9:00 a.m. I will make such an announcement tomorrow at 9:00 a.m. in Courtroom 7E,” using the legal term “continue,” which means delay or postpone.
The trial had been scheduled to open Monday but the judge announced Sunday evening it’d be delayed until Tuesday. The reason was not immediately clear. The Wall Street Journal reported that Fox had made a last minute effort to settle the dispute out of court, citing people familiar with the matter.
“Dominion has seemed quite motivated, throughout this case, to play it out on a public stage and correct the larger record on election denialism,” said RonNell Anderson Jones, a First Amendment expert and professor of law at the University of Utah.
In the upcoming trial, a group of company executives and high-profile hosts are due to testify about the election lies promoted by the network.
Dominion Voting Systems alleges the conservative network promulgated the ex-president’s conspiracy theories, including about its voting machines, to avoid alienating its viewers and for the good of its bottom line.
The drama expected to play out in a Delaware courtroom represents an extraordinary moment in modern American history because it could show how truth has been tarnished as a political currency and highlight a right-wing business model that depends on spinning an alternative reality. It’s not clear whether Trump will end up paying a personal price for authoring the fraudulent conspiracy that took place in the 2020 election.
Though he vigorously denies breaking any laws, the former president appears to face the possibility of indictment in probes into his attempt to overturn President Joe Biden’s election victory by a district attorney in Georgia and by special counsel Jack Smith into his conduct in the lead-up to the US Capitol insurrection. Interviews and public testimony taken by a House select committee when the Democrats controlled the chamber last year catalogued many layers of Trump’s democracy damaging behavior.
The bedrock of the Trump campaign is the false perception of a corrupt election. Millions of Trump’s supporters have bought into the idea that he was illegally ejected from office on the premise that he really won in 2020.
It’s also questionable whether viewers of conservative media will hear much about the trial and get sufficient information that might convince them to change their minds about 2020.
Many in the GOP are unwilling to challenge him, and that makes him seem like he has a vested interest in spreading false information. This makes some party leaders irate, since they watched Trump’s own candidates flamed out in swing states in last year’s election.
Georgia GOP Gov. Brian Kemp said on Sunday that the ex-president was forcing his party to look in the mirror and forget about the future.
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One core argument in court will likely be trying to show that Fox believed that telling the audience inconvenient truths was bad for business – a factor that drove right-wing media in 2020 and still holds true today. Proof of this can be seen in the way the Republican Party remains unwilling to anger its base voters two years on. While many top party leaders want to move on from Trump, the only part of the GOP that has authority in Washington, is shielding Trump from being held responsible over the 2020 election and what actually happened on January 6, 2021.
But the court proceeding against Fox – like the constitutional process that assured a transfer of power between Trump and Biden, albeit one marred by violence – shows that the country’s instruments of accountability remain intact, despite Trump’s efforts.
But the run-up to the trial has been a catalog of embarrassments and reversals for both the network and the broader premise that there is anything to Trump’s false claims.
When Trump was inaugurated, he immediately made clear he would subvert the rules and conventions of the presidency to create an alternative vision of reality that his supporters could embrace. Sean Spicer, the press secretary to the president at the time, argued that the biggest inaugural crowd in history had been attracted to Trump. But in retrospect, they were the first sign of a daily effort to destroy truth for Trump’s political benefit, which eventually morphed into lies about a stolen election that convinced many of the ex-president’s supporters. During the certification of Biden’s victory, a mob attack on Congress took place, capping off all of this.
Perhaps this is not surprising. When he was in office, Trump let everyone know how he operated, in a moment of candor.
“Stick with us. Don’t believe the crap you see from these people, the fake news,” he said in a directive to his supporters at a Veterans of Foreign Wars convention in Kansas City in 2018. “What you’re seeing and what you’re reading is not what’s happening.”
“We won in 2016. In the first major rally of his campaign in March, Trump claimed that the 2020 election was rigged.
The Long Game With Fox News: How Do We Get Our Public Footprints? An Address to Sununu at a Republican National Retreat in Tennessee
If you look in the mirror for a long time while driving, you are going to end up running into someone and that is not going to be good.
Yet the fact that Trump, according to many polls, remains the front-runner for the Republican nomination in 2024 and is still wildly popular with conservative grassroots voters suggests that it will take far more than a courtroom display to restore the truth about 2020.
At the Republican National Committee’s spring retreat in Tennessee over the weekend, a swing-state GOP governor told major donors the party’s future political success depended in part on Fox News.
Sununu doesn’t seem to dislike Fox despite his criticisms. He appeared on “America’s Newsroom” just 48 hours after he made his comments in Nashville.
But, in case there was any doubt, the material gathered by Dominion’s legal team cements the image of Fox as an institution with a deeply ingrained conservative outlook and whose leaders are closely interwoven with Republican politics.
Sununu told the Republicans that they had to start thinking about the long game. “We get ourselves tied up in issues. I’m not saying they’re not important, but they ain’t making the team bigger.”
He said that the party had an attractive product for young voters, with low government regulation, low taxes and local governmental control.
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“I was on with [Fox News business anchor and senior vice president Neil] Cavuto this morning, and I talk to the leadership at Fox all the time,” Sununu said.
“I go, ‘Look guys, I saw a panel discussion with four panelists on Fox and they all were literally agreeing with each other… They’re in an echo chamber. What are you doing to grow the team?'”
NPR obtained an audio recording of an excerpt of the talk from Lauren Windsor, a liberal activist and consultant, who acquired them from an attendee. Vihstadt authenticated the governor’s remarks.
Fox is under a lot of pressure at a delicate moment. Its lawyers are simultaneously girding for a six-week trial, set to begin Tuesday morning after a one-day delay, and negotiating over a possible settlement with Dominion’s legal team.
And Trump drew from a roster of Fox personalities for appointments to his administration. The stars advised him to not be on the air. The day after another election tech company, Smartmatic, sued Fox in a defamation claim, Dobbs would be forced out.
In response to a request for comment, a Fox spokesman noted that surveys suggest its audiences are more popular with Democrats and independents.
Back in November 2020, NPR reported that Hannity invited RNC Chairwoman Ronna McDaniel on his show on the night before Biden would be projected to win the presidency.
An internal GOP memo to prepare McDaniel reflected full knowledge of what would be asked, setting out the specifics of the show’s lengthy opening segment — including its guests and subjects — and Hannity’s main points. They were interested in suspicions of voter fraud.
In late September 2020, Murdoch warned Trump’s son-in-law and adviser, Jared Kushner, that the Biden campaign ads were better. The media magnate followed up a day later with another email, after he found out his former wife had helped reconcile his son with his wife.
“Your adv at 1.0 pm this Sunday an improvement, but Biden in same football It is very good. I think so. Murdoch said in an email that he would send it.
On November 10th, a few days after Fox projected Biden’s win, star host Maria Bartiromo texted former Trump former chief political adviser Steve Bannon, “Omg I’m so depressed. I can’t take this”
Bannon had no plans to stand still. He said that he was going to delegitify Biden as president and that Republicans would get Bartiromo elected to the Senate in New York.
Murdoch’s son wrote that news men should be careful how they cover the rally. Some of the comments on the side are slightly anti, but they shouldn’t be. The story should be a celebration of the president.
On November 16, Rupert Murdoch affirmed his interest in aiding the Republican drive to win the Senate in an email to Scott: “Trump will concede eventually and we should concentrate on Georgia, helping any way we can.”