Dominion Voting Systems on Wednesday asked a judge to issue a ruling in its $1.6 billion defamation lawsuit against Fox News before next month's scheduled trial after submitting evidence showing that Fox hosts and executives knew the TrumpWorld election lies they aired were false.
Dominion asked the judge to decide the case in its favor, arguing that Fox News had "produced no evidence – none, zero – supporting those lies."
"This concession should come as no surprise. Discovery into Fox has proven that from the top of the organization to the bottom, Fox always knew the absurdity of the Dominion 'stolen election' story," Dominion said in the filing. "Despite having conceded it was all a lie, and despite internal documents proving they knew it was a lie all along, Fox still will not retract the lies and tell its audience the truth," the company's lawyers added.
Fox Corp. Chairman Rupert Murdoch acknowledged in his deposition that some hosts "endorsed" false claims. Internal messages also showed that top hosts, including Tucker Carlson, Sean Hannity and Laura Ingraham, derided the stolen election claims in private text messages but continued to air them in an effort to keep viewers from turning their attention to competing networks.
"It's really kind of remarkable, the quantity of evidence tending to show knowledge or recklessness in this case," Lyrissa Lidsky, a constitutional law professor at the University of Florida, told Salon. "It's very rare, in a case against the media, that you're going to have this quantity of evidence, that they knew what they were putting out there was false."
When it comes to establishing "actual malice," showing knowledge that the statement is false or reckless disregard of the truth both play a key role, she added.
"More and more information and evidence keep trickling out that they did know what they were saying was not truthful and yet kept putting it out there anyway," Lidsky said.
Despite an ongoing behind-the-scenes "internal critique" of the election lies that former President Donald Trump was pushing out, hosts continued to air conspiracy theories they knew to be false because they believed "it would disturb their viewers to hear the truth," she said.
"Some of the information that's coming out suggests that the journalists thought [the viewers] couldn't handle the truth," Lidsky said. "One of the rules of being in the media is 'Don't insult the intelligence of your audience.'"
Murdoch even acknowledged that some of the hosts crossed a line.
"Maybe Sean and Laura went too far," Murdoch wrote in an email to Fox News CEO Suzanne Scott, referring to the primetime hosts pushing out election denialism after Trump's loss.
Dominion alleged in its lawsuit that the right-wing channel "recklessly disregarded the truth" and accused Fox of wanting a "license to knowingly spread lies".
The network fired back, accusing Dominion of an "unprecedented effort to punish the press for covering and commenting on the most newsworthy story of the day."
"This effort to publicly smear a media organization just for having the temerity to cover and comment on allegations being pressed by the sitting President of the United States should be now recognized for what it is: a blatant violation of the First Amendment," lawyers for Fox News said.
But First Amendment experts argue that Fox can no longer rely on the First Amendment as a defense.
"In my view, they have absolutely no First Amendment defense because they satisfied the actual malice standard," said Catherine Ross, a constitutional law professor at George Washington University who specializes in First Amendment issues. "If this extraordinary case, with the mountains of evidence that we have already seen, does not meet the actual malice standard for holding a news organization to account for falsehoods, it is hard to imagine what would."
Beyond actual malice, the network's motivation behind spreading falsehoods has also come to light, Ross told Salon.
"The motive was clearly profit," she said. "In other words, pleasing the Fox audience and giving them what they want."
But the audience's demands didn't just arise out of nowhere, Ross added. Leading up to the 2020 election, Fox invited numerous guests who sowed doubt about the validity of the election.
"They had groomed the audience to be receptive to those fabrications about a stolen election," Ross said, emphasizing that it's critical to look at context when looking at speech claims.
This is a strong case for the court to grant summary judgment, Ross added, which would mean that there are no disputes over material facts and no factual issues for the jury to resolve. The court can reach the merits of the legal claim. But even if the court decides that Dominion wins the case, there could still be a jury trial, Ross said, which could be limited to determining the amounts of damages Dominion is seeking. Along with compensatory damages of $1.6 billion, Dominion is also asking the court to impose punitive damages.
"It's also possible that everything will go to the jury because the judge may say 'we're going to have a trial anyway', but it would make the trial much longer and much more complex," she said.
Fox is likely to focus its efforts on limiting these damages, Lidsky said. They could still try to claim that only a select number of journalists meet the standard for "actual malice," but the growing evidence suggests otherwise – implicating the entire network, she added.
Even if Fox is able to defend itself in the case, "the reputational black eye that this represents for a mainstream media organization is significant," Lidsky said.
She added that this case isn't just about Fox, but also sends a message to other journalists to recommit to the ethics of getting the story right.
Ross echoed similar sentiments and said that "Fox has really undermined democracy in a profound way."
But she added that this case serves as an important reminder of the function of defamation law, which individuals like Trump have used "as a weapon against [journalists] who don't have a deep enough pocket to defend themselves."
"This is a reminder," Ross said, "of why we have strong rules against defamation that also protect political speech."
