When attorneys for Dominion Voting Systems asked NewsCorp Executive Chairman Rupert Murdoch whether Fox News “endorsed” the idea that the 2020 election was stolen, he knew exactly which talking heads were responsible.
“Some of our commentators were endorsing it,” Murdoch said, after name-checking Lou Dobbs, Maria Bartiromo, and responding in the affirmative to a question about Sean Hannity.
It’s become a key point as Dominion and Fox gear up for oral arguments on Tuesday in a seismic defamation lawsuit. Delaware Superior Court Judge Eric M. Davis will hear arguments as both sides seek to persuade him — for different and contradictory reasons — to rule in their favor in the matter without taking the case to trial.
Both sides are pushing for the bench ruling, called summary judgment. Dominion sued Fox for $1.6 billion in damages, alleging that it destroyed the company’s reputation by lying to its viewers that the company used its machines to rig the 2020 election.
The battle on Tuesday will come down to a mixture of legal theory and juicy evidence unearthed throughout the length of the case. Dominion wants Judge Davis to award it damages based on the evidence it’s gathered so far; Fox wants Davis to dismiss the case outright.
Dominion has claimed in court papers that Fox knew that the theories it was spreading about the 2020 election being rigged were false — and that it did so anyway in pursuit of profit and to retain its share of the conservative media market after its early Arizona call damaged its position with its core audience.
Now, Dominion says, Fox is “seek[ing] a First Amendment license to knowingly spread lies.”
To make the argument that Fox knew it was lying to its viewers, Dominion marshaled reams of evidence, including a now-infamous text from Fox News host Tucker Carlson reflecting that he “hate[s] Trump passionately.”
“That’s the last four years,” Carlson wrote in a text message. “We’re all pretending we’ve got a lot to show for it, because admitting what a disaster it’s been is too tough to digest. But come on. There isn’t really an upside to Trump.”
Fox has contended that it was merely reporting on a live controversy as it took place without endorsing any one viewpoint throughout. The fact of doubts — or disdain — expressed by journalists and hosts doesn’t create a requirement to debunk so long as there’s a live controversy, the network has suggested.
“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,” Fox attorneys argued.
That’s where Dominion has brought in the Murdoch deposition as potentially critical.
Murdoch, Dominion said, admitted in the deposition that at least some Fox hosts went far enough in their coverage and commentary to endorse the idea that the election was stolen.
“Yes, they endorsed,” Murdoch said in the deposition.
Per that potential admission, Dominion attorneys have claimed, Fox may lose under its own legal theory.
These arguments will be unspooled on Tuesday.
If Judge Davis declines to approve either sides’ motion for summary judgement, then the case will proceed to a jury trial absent any settlement agreement. That would be scheduled to begin in April.
Fox has consistently claimed that Dominion’s position threatens press freedom at large, maintaining that its hosts were giving a full airing of various sides of a national controversy — in spite of evidence provided by the network itself during discovery showing that its journalists knew the claims to be false.
But there are larger questions around press freedom that the case implicates.
As Amy Davidson Sorkin suggested in the New Yorker this week, a victory for Fox News might provide the Supreme Court with just the egregious — and politically scrambled — case they need to rewrite libel law nationwide.