Fox’s PR problems may not translate directly to legal problems
Bit by bit of disclosure over the past three weeks, in the days following the 2020 presidential election, has exposed widespread panic and disbelief within Fox News as the network becomes some of the most insidious sources about widespread voter fraud. A platform for lies. The revelations are the most unsettling events for Murdoch’s media empire since the phone-hacking scandal in Britain more than a decade ago.
The headlines have been compelling. Tucker Carlson, a self-proclaimed champion of former President Donald J. Trump’s populist message, was caught insulting Mr. Trump — “I hate him so much, ’ he wrote in a text message. Laura Ingraham and Sean Hannity belittle their network news colleagues. Rupert Murdoch says he longs for a day when Trump becomes irrelevant.
These examples and more — the personal emails, text messages and testimony released in Dominion Voting Systems’ $1.6 billion defamation lawsuit against Fox News — are embarrassing. But in that case, it’s unclear whether they posed serious legal danger to Fox.
When the case goes to trial next month, the information that made some of the headlines may never be introduced as evidence, according to lawyers and legal scholars, including several directly involved in the case. Fox is expected to ask the judge to exclude certain texts and emails as irrelevant.
But the strongest legal defense Fox has is the First Amendment, which allows news organizations broad leeway to cover topics and statements by elected officials. In court, Fox’s lawyers argued that the network was simply reporting what Mr. Trump and his allies had said about fraud and the Dominion machine — not endorsing the lies.
If the jury finds that to be true — which they say is not a far-fetched result, especially if the network’s lawyers can show that its hosts did not take the allegations as fact — then Fox could win, media law experts said.
“I think the case is ultimately going to be a jury to decide whether the company or the commentator endorses — that’s really the key question,” said George Freeman, a former New York Times attorney who is now executive director. The Media Legal Resource Center, which assists news organizations with legal issues.
“I think it gives Fox a fighting chance,” he added.
While Fox could win by jury, legal scholars say Dominion’s case is exceptionally strong.
Dominion’s lawyers argue that what Fox’s hosts and guests have said about its machines and their role in a non-existent plot to steal votes from Mr. Trump is anything but cool, neutral reporting.
“Truth and shared facts form the foundation of a free society — and even more so here,” its lawyers said in a brief to the court on Thursday. “Dominion’s false idea of rigging the 2020 presidential election undermines democracy at its core.”
First Amendment lawyers rarely side with media companies. But many of them did just that, arguing that a finding against Fox would send an important message: The law does not protect those who spread disinformation. First Amendment experts say it would help dispel the idea that defamation laws should be rewritten to make it easier to win defamation suits, as Mr. Trump and other conservatives, including Justice Clarence Thomas, have said. as suggested.
In a recent filing, Dominion argued that the law is sufficient to hold Fox liable.
“If the case does not qualify for defamation, then defamation loses all meaning,” Dominion argued in a legal filing made public Thursday.
But legal experts say the rise and fall of the case has nothing to do with how juries consider lofty concerns about the health of American democracy. Instead, they say, Dominion’s challenge will be to argue convincingly about something more concrete: that Fox News is either deliberately spreading disinformation, or has been so reckless as to ignore clear evidence that the conspiracy theory about Dominion is false.
While coverage of the case has largely focused on derogatory comments made privately by the network’s star hosts and executives — about Mr. Trump, his lawyers and others — the remarks only pointed to a deeper inside Dominion Fox can only help its case when there is layered corruption, namely that it cynically pumps up false stories about the Dominion machine because its ratings are declining.
“When I see headlines that are primarily about Tucker Carlson or Sean Hannity, those are the kinds of conversations the lawsuits are designed to spark,” said Ronelle Anderson, a First Amendment scholar and University of Utah law professor. Jones said.
“At least some of this evidence is important for the atmosphere,” Ms Anderson-Jones added. But more important to the outcome of the case, she said, is “what drives individual shows to make narrower decisions.”
Lawyers for Fox, for example, could ask a judge to withhold much of Murdoch’s testimony from jurors, on the grounds that Murdoch, the company’s chairman, had no direct role in programming-level decisions. They plan to argue that Fox’s coverage of the aftermath of the 2020 election needs to be considered as a whole, including hosts and guests who insist there is no evidence of widespread fraud.
The more Fox’s lawyers can show in reporting instances where hosts have refuted or framed unsubstantiated allegations, the stronger their case will be.
Erin Murphy, an attorney defending Fox, said Dominion didn’t want to “talk about shows that have a lot of commentary from different angles.”
Especially when the shows are “higher-rated and more mainstream”, Ms Murphy added.
Dominion would be in the strongest legal position, defamation experts say, so long as it can point to specific instances where a Fox employee working on a project admitted fraud allegations were false or ignored them — and the people who made them – unreliable evidence.
Dominion cites only one episode each of Mr. Carlson and Mr. Hannity as defamatory: Mr. Carlson’s Jan. 26, 2021, interview with MyPillow CEO Mike Lindell, and Mr. Hannity’s interview with attorney Sidney Powell interview. Some of the most outrageous allegations of fraud were made on November 30, 2020.
Dominion’s defamation claims against three more obscure shows with much lower ratings are more substantive and have a broader track record: “Maria Bartiromo’s Sunday Morning Futures” and the now-canceled “Lou Dobbs Tonight,” both airing on Fox Business in 2020; and “Judge Jeanine’s Justice,” a Saturday night talk show hosted by Jeanine Pirro on Fox News. With Judge Jeanine, which Fox News later canceled and promoted Ms. Pirro to a regular on weekday roundtable talk show “The Five.”
Particularly damaging, legal experts say, is the evidence against Ms Bartiromo. Dominion accused her of recklessly ignoring evidence that one of Powell’s key sources, who appeared repeatedly on Ms Bartiromo’s show, was mentally unstable – a “weirdo” by the source’s own admission.
The full text of it was released last Tuesday, along with thousands of pages of Fox employee testimony and private information, in an email from someone who identified herself as technology analyst Marlene Byrne. Ms. Powell forwarded Ms. Byrne’s email to Ms. Bartiromo on the evening of Nov. 7, and Ms. Bartiromo forwarded it to her producer.
In the email, Ms Byrne described a number of conspirators plotting to discredit Mr Trump, including some who have been dead for years, such as former Fox News CEO Roger Ailes ( Roger Ailes). She writes that she has the ability to “time travel in a semi-comatose state” and that when she is awake, she can “see what others can’t see and hear what others can’t hear”. She also said she had been beheaded after giving tips to the FBI and “it appears I was shot in the back”.
“If we’re really concerned about where the strongest evidence is,” Ms. Anderson-Jones said, “it’s the outlandish emails. Because the real question is whether you have any subjective awareness that what you’re showing on the show might be false. “