Dominion Voting Systems filed a motion for summary judgment Thursday in its $1.6-billion defamation case against Fox News, claiming Rupert Murdoch’s network knowingly pushed a false narrative based on former President Donald Trump’s bogus claims that the 2020 election was stolen from him.
“From the top down, Fox knew ‘the Dominion stuff’ was ‘total bs,’” the brief stated. “Yet despite knowing the truth — or at minimum, recklessly disregarding that truth — Fox spread and endorsed these ‘outlandish voter fraud claims’ about Dominion even as it internally recognized the lies as ‘crazy,’ ‘absurd,’ and ‘shockingly reckless.’”
The motion based on depositions and evidence uncovered in discovery — and the response filed by Fox News — lays out the legal showdown, which could be a devastating blow to Murdoch’s empire. The document goes into granular detail to claim the network panicked over viewer reaction to Trump’s loss, with the truth at times taking a back seat to concern over declining ratings. It’s likely to have a lasting negative impact on the network’s reputation even if the case does not go to trial as scheduled in mid-April.
Fox maintains the company’s stance that its reporting on Trump’s claims — albeit false — were still newsworthy and protected under the 1st Amendment. In a response also filed Thursday, Fox News deals at length with Dominion’s value as a company and asserts its request for $1.6 billion in damages far exceeds the company’s value and is an overreach.
Fox News will file a full response to Dominion on Feb. 28 but said in a statement: “There will be a lot of noise and confusion generated by Dominion and their opportunistic private equity owners, but the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan.”
Dominion’s filing lays out some of the behind-the-scenes comments by Fox News executives and on-air talent expressing their skepticism of Trump’s effort to use a ragtag team of lawyers, such as Sidney Powell, and surrogates to wage a vigorous campaign to overturn his loss to President Joe Biden. Nevertheless, the Fox personalities and bosses portrayed Dominion, without any evidence, as being a key player in a rigged election by manipulating vote counts and suggesting that it was owned and controlled by the Venezuelan government.
Fox News gave those claims life by allowing Trump and others to perpetuate them for weeks after their own reporting and research determined they were not true. Behind the scenes its anchors and executives did not believe them either, but had growing concerns that an angry audience was abandoning them.
“(T)hat whole narrative that Sidney was pushing — I did not believe it for one second,” Fox News host Sean Hannity, a close friend and ardent supporter of Trump, said in his deposition testimony.
In the weeks after the Nov. 8, 2020, election, evidence shows other Fox News talent agreed with Hannity, the motion maintains, spelling out such instances as: “Sidney Powell is a bit nuts. Sorry but she is,” host Laura Ingraham said to Hannity and Tucker Carlson on Nov. 15, 2020.
Fox News reporter Lucas Tomlinson on Dec. 1, 2020, described the fraud claims as “conspiracy theories” and “dangerously insane” to Fox News chief political correspondent Bret Baier.
An internal fact check conducted by Fox News on Nov. 13 and 20, 2020, found there was no evidence of widespread voter fraud. Baier also said privately on Nov. 5, 2020, ‘There is no evidence of fraud, none.”
When Maria Bartiromo posted allegations on Nov. 5, 2020, of votes being dumped, Baier told Bill Sammon, a former Fox News Washington executive, “We have to prevent this stuff…We need to fact check.”
Even Murdoch stated Trump’s claims were false, telling Fox News Media Chairman Suzanne Scott two days before the election, “if Trump becomes a sore loser we should watch Sean especially and others don’t sound the same.”
Dominion asserts that Fox News ignored the truth and peddled a false narrative because it feared Trump supporter backlash over the network’s early, but ultimately correct, call that Biden had won the state of Arizona, putting him on track for an electoral victory.
Fox News faced a decline in ratings after the 2020 election — not unusual when the Democratic Party wins and upsets its conservative audience. But upstart conservative TV news rivals, such as Newsmax, remained loyal to Trump and amplified his views, giving the losing candidate’s unhappy voters some solace.
“Rival networks such as Newsmax took advantage of the opening by promoting ‘an alternative universe’ of election fraud,” the claim says. “So Fox went on ‘war footing,’ caring more about protecting its own falling viewership than about the truth.”
Based on the evidence, the surge of Newsmax caused a full-scale panic inside of Fox News. Carlson expressed concerns in a text to his producer that the voter fraud story could energize rival conservative networks.
“Do the executives understand how much credibility and trust we’ve lost with our audience?” the text read. “We’re playing with fire, for real....an alternative like Newsmax could be devastating to us.”
Dominion asserts that Fox News executives made a decision on Nov. 9, 2020, that it had to act to stop its sliding ratings, which were directly correlated to anger over the Arizona election call.
Scott is quoted as telling her communications chief Irena Briganti that Sammon — who oversaw the election decision desk making election projections — “did not understand ‘the impact to the brand and the arrogance in calling AZ,’ which she found ‘astonishing’ given that as a ‘top executive’ it was Sammon’s job ‘to protect the brand.’”
Scott contacted Fox Corp. Executive Chairman Lachlan Murdoch to agree on a plan that day to win viewers back.
Executives apparently began to push back on reporters and anchors who maintained on air that the fraud claims were false. When Washington correspondent Jacqui Heinrich posted a fact-checking tweet that knocked down a false Trump tweet about Dominion, Carlson texted Hannity and called for her firing.
“Please get her fired. Seriously….What the f—-? I’m actually shocked,” Carlson wrote. “It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.”
The motion cites a quote from Sammon, who was fired after the election: “It’s remarkable how weak ratings make good journalists do bad things.”
In the weeks that followed, Fox News gave ample time to press conferences with Powell and Trump lawyer Rudy Giuliani, which Murdoch described as “really crazy stuff” and damaging.
But when then-White House correspondent Kristen Fisher fact-checked the claims by Powell and Giuliani, she received a call from her bosses expressing their unhappiness.
Fisher was chastised by her boss, Bryan Boughton, who said “she needed to do a better job of respecting our audience,” the motion maintains.
Scott was also upset about the report — and anchor Dana Perino’s remarks that Dominion could sue over Powell’s and Giuliani’s claims. Scott said in an email, “The audience feels like we crapped on (them) and we have damaged their trust and belief in us.... We can fix this but we cannot smirk at our viewers any longer.”
Dominion has to prove that Fox News spread Trump’s lies with actual malice. The motion said the willful dissemination of false claims was spread by people throughout Fox News.
“Normally defamation cases involve the state of mind of one person, or sometimes a handful, as the law only requires that one person with editorial responsibility have the requisite actual malice,” the judgment states. “Here, however, literally dozens of people with editorial responsibility — from the top of the organization to the producers of specific shows to the hosts themselves — acted with actual malice.”
Fox News asserts that Dominion believes the network “had a duty not to truthfully report the President’s allegations but to suppress them or denounce them as false. Dominion is fundamentally mistaken. Freedom of speech and freedom of the press would be illusory if the prevailing side in a public controversy could sue the press for giving a forum to the losing side.”
Fox News filed a response that focused on the potential economic impact of its coverage and how the $1.6 billion in damages Dominion is seeking is a multiple of the company’s actual value.
Fox News argued that the amount Dominion is asking has “no connection” to the company’s financial value “or any supposed injury it suffered” as a result of the network’s reporting.
Fox’s counterclaim said Staple Street Capital Partners, a New York-based private equity firm, acquired a 76.2% stake for Dominion in 2018 for $38.3 million and that the investment company’s internal valuation of the company is $80 million.
“Even under the most optimistic projections, Staple Street has never estimated Dominion’s value as a business to be anywhere near $1.6 billion,” the counterclaim states.
Fox News goes on to say no single press outlet’s coverage of a story could inflict the kind of financial damage Dominion is claiming.
“Documents produced in discovery show that Dominion is in a solid financial position, maintaining substantial cash, carrying no debt, and producing a steady return on investment to Staple Street,” the counterclaim said.
Fox News also cites evidence that none of Dominion’s customers has canceled a contract as a result of its coverage of Trump’s allegations.
The counterclaim cites a statement made by Dominion’s Chief Executive and President John Poulos in December 2020 to a company board member that the news coverage of Trump’s voter fraud allegations would have no effect on its business. “No customer cares about the media,” he said. “It’s just more words from their perspective.”
