Dominion Voting Systems is out for blood in its defamation case against Fox News.
The company is suing Rupert Murdoch's network for $1.6 billion in damages, saying the mogul and his top lieutenants knew that former President Donald Trump's claims of voter fraud in the 2020 election were false but gave them continued coverage to placate its viewers and boost ratings.
To prevail, Dominion's lawyers must prove the network acted with malice by knowingly spreading false information.
Fox News maintains that its reporting and commentary was protected by the First Amendment because allegations presented by a sitting president are newsworthy even if false. In the network's coverage, Dominion was wrongly accused of using its machines to manipulate votes to throw the election to Joe Biden and of being owned and controlled by the Venezuelan government.
Dominion has filed two legal briefs that expose internal discussions showing that some Fox News personalities, executives and even Murdoch himself did not believe Trump's claims but still gave his lawyers and supporters a forum to spread their unfounded theories because they were concerned about declining ratings. The briefs include stunning deposition testimony from Murdoch, who admitted he knew that some of the statements his on-air personalities and guests were making were false.
Here's what's next in the case, which is headed for trial in mid-April.
Q: How strong is Dominion's argument against Fox News?
A: Many First Amendment attorneys said Dominion has presented highly compelling evidence of malice by Fox News, which poses a significant threat to the network if it goes to trial, they said.
"I do overall believe that this is one of the strongest plaintiff's cases that I've ever seen," said attorney Lee Levine, who litigated First Amendment matters for 40 years. "I have a hard time envisioning a scenario in which Fox wins before a jury."
Andrew Geronimo, director of the First Amendment Clinic at Case Western Reserve University School of Law, said he was taken aback by the evidence and believes Fox News is in an unenviable position as a defendant. Dominion's motion cited numerous examples of Fox News insiders disputing the veracity of Trump's claims in blunt terms.
"Usually, making out actual malice is all about inferences to things, what should have been discovered and what might have been overlooked," Geronimo said. "It's not usually so stark as 'this is BS.' From a defense lawyer's perspective, it gives me the cold sweats reading this."
Fox News has said Dominion's motions "took an extreme, unsupported view of defamation law that would prevent journalists from basic reporting."
Q: Fox News has argued in its motion for summary judgment that the damages Dominion wants are excessive because they are far greater than the voting machine maker's estimated valuation. Fox also cites comments by a Dominion executive suggesting that its business was not hurt by the media coverage. Will those argument s work?
A: Levine and other attorneys believe Fox's motion is meant to get Dominion to agree on a settlement that is lower than the $1.6 billion figure in the suit.
"Fox's brief is designed to say, 'You guys are not entitled to $1.6 billion, that's really ridiculous. Let's talk in a more reasonable range,'" Levine said. "I don't see any other reasons for Fox to have filed a summary judgment motion on that issue."
Fox News — knowing the impact of having embarrassing private communications made public — may also be trying to mitigate the financial damages it faces if it loses in court, Levine added.
(In a statement, Fox News called the damage claim "outrageous" and a "naked attempt to suppress legitimate speech protected by our Constitution.")
People inside Fox say privately that there are no signs a settlement is near.
Q: Is there any chance of the judge granting a summary judgment for either side?
A: Highly unlikely, as such a decision would have to be based on undisputed facts. "This is a classic case of reasonable people could differ on these facts," said Carl Tobias, a professor at the University of Richmond School of Law. "This is full of factual disputes. It would have to go to a jury."
Q: Will the revelations in the motions filed by Dominion so far hurt Fox News' reputation among its viewers?
A: The question is how much Fox News viewers will actually learn about the case. While other news organizations are devoting major time and space to the story, Fox News has yet to report on it. Howard Kurtz, the network's longtime media analyst, told viewers Sunday that the company has told him not to discuss or write about the Dominion case, a decision he disagrees with but is obeying. Fox News has devoted so much time over the years to discrediting other news organizations that loyal Trump-loving viewers could dismiss any reports they hear as fake news.
But a slow drip of story after story in other outlets could chip away at the network's credibility among the political independents and Democrats who watch (Nielsen data shows they are out there). At some point, those viewers may want the network to speak up and present its side.
Fox News did not comment on how it plans to report on the matter.
Q: Will advertisers react negatively to Fox News' behavior?
A: Some sponsors already avoid Fox News opinion programming that they feel is too polarizing and controversial for their brands, and this situation won't help.
But what may be far more problematic down the road is the Dominion legal brief's revelation that Murdoch shared information about President Biden's advertising strategy with Trump's son-in-law Jared Kushner during the 2020 election campaign. (Biden's campaign bought commercials on Fox News.)
That could make Democratic campaigns less likely to spend money on Fox News going forward. It may also give pause to Democratic candidates who spend major dollars to advertise on other Murdoch media properties such as the Fox broadcast network and the company's owned television stations, which are highly dependent on political ad dollars during presidential and midterm election years.
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