After a hearing Tuesday, if Judge Eric M. Davis dismisses both requests for summary judgment — one by Dominion Voting systems in its $1.6 billion defamation lawsuit against Fox News and the other by Fox to throw out the suit — the case will head to trial in April.
The Denver-based electronic voting hardware and software company sued both Fox News and its parent company Fox Corporation for defamation in 2021. Dominion argues that Fox News employees touted false claims that Dominion had changed votes in the wake of the 2020 election, and that they gave guests a platform to make inaccurate and defamatory statements, even though they knew the claims were false, and they did so to avoid alienating their conservative audience.
In its reply brief filed ahead of Tuesday’s hearing, Fox News argued that “so long as the press makes clear that the allegations are just allegations, it is free to offer its opinion that the allegations are ‘credible’ and merit investigation (as some Fox News hosts and other networks did), just as it is free to offer its opinion that the allegations are implausible (as other Fox News hosts and other networks did).”
Fox News is defending its coverage by claiming that the network was merely covering the statements made by the then-sitting president and his legal team which in and of itself were newsworthy.
“Dominion instead advances the radical position that it does not matter if the allegations were accurately presented as allegations, or even if they were presented as false allegations,” Fox News lawyers wrote. “According to Dominion, the mere act of repeating them, or allowing the President’s lawyers to articulate them, makes the press as liable as those leveling the allegations.”
Lawyers for Fox go on to argue in their filing that if Dominion’s goal is to prosecute the network for repeating the Trump camp’s claims, then they should be bringing this action against every news agency that reported on the former president’s allegations as well.
Dominion’s attorneys dispute that point: “Media companies may always report the truth, including reporting on false allegations while explaining that the allegations are false, and Dominion did not sue the many media companies that did just that in 2020.”
The threshold that Dominion must meet in this case is high because it must prove that Fox acted with “actual malice,” meaning that Dominion must show that the network knew the claims were false or acted with reckless disregard for whether they were false or not in perpetuating the claims of fraud. Dominion lawyers note that 19 of the 20 broadcasts in question occurred after Dominion had sent “Setting the Record Straight” memos to Fox.
“Some shows stopped airing the allegations because they knew they would have to ‘tell the truth’ if they did so,” Dominion wrote. As an example, they point to Fox News host Laura Ingraham who stated in her deposition that by Nov. 12, she “made the decision not to air the false allegations of Dominion.” The company points out that she never made a public admission about their falsehood to her audience.
Exhibits in the case show that some of Fox News’ top executives had harbored misgivings about what was being said on the network after the 2020 election, and even after President Biden had been inaugurated. Hosts, including Tucker Carlson and Ingraham, also expressed concerns about guests who made claims about voter fraud, according to court records.
On Monday, a Fox News producer who worked for hosts Maria Bartiromo and Tucker Carlson filed a pair of lawsuits against the network Monday, alleging its legal team “coerced” her into giving misleading testimony in the ongoing defamation case and accusing Fox News of fostering a “toxic” work environment.
Attorneys for the cable news giant argued in a counterclaim unsealed in February that the lawsuit is an assault on the First Amendment. Fox claimed Dominion advanced “novel defamation theories” and is seeking a “staggering” damage figure.
