Fox News Dealt Major Setback In Dominion’s Mega-Defamation Case

MANHATTAN, NEW YORK, UNITED STATES - 2021/11/23: Entrance to Fox News headquarters at NewsCorp Building in New York. (Photo by Erik McGregor/LightRocket via Getty Images)
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Fox News is staring down the barrel of a $1.6 billion defamation claim after it failed to get the case against it by Dominion Voting Systems dismissed.

The decision Thursday by a state judge in Delaware clears the way for Dominion Voting Systems to proceed to discovery in the case and cranks up the pressure on Fox News in the high-stakes battle over its coverage of the 2020 election aftermath.

Dominion was the target of a wave of attacks and conspiracy theories after Trump’s election loss. Fox News is one of a long roster of organizations and individuals hit with 10-figure defamation lawsuits. Others, like one-time Trump campaign lawyers Sidney Powell and Rudy Giuliani, have also unsuccessfully sought to have the suits against them dismissed. 

The decision means Fox News isn’t getting off the hook early, Lynn Oberlander, a media lawyer at Ballard Spahr, told TPM.

“Dominion set out a very strong complaint, and I think the judge’s decision here recognized the strength of that complaint,” Oberlander said. 

In its efforts to dismiss the suit, Fox argued that the allegations from the Trump campaign against Dominion were a matter of public concern, that the claims were at the center of several lawsuits over the election, and that its on-air personalities were at times merely stating their own opinions. In his decision denying the motion to dismiss the lawsuit, Delaware Judge Eric M. Davis swatted away Fox News’ defenses one by one.

Davis spent much of his opinion running through Dominion’s efforts to correct the record in the face of a wave of lies from Fox News guests about the machines purportedly flipping votes and stealing an election.

Certain Fox News journalists, like Bret Baier, refuted Trump’s and others’ false claims about the election on air, the judge noted. But other Fox News hosts did not, and he said some in fact seemed to endorse the claims.

“Fox possessed countervailing evidence of election fraud from the Department of Justice, election experts, and Dominion at the time it had been making its statements,” he wrote.

“The fact that, despite this evidence, Fox continued to publish its allegations against Dominion, suggests Fox knew the allegations were probably false.” 

Davis also noted that Fox News frequently refused to report evidence that contradicted the election fraud conspiracy theorists and Trump campaign lawyers that it repeatedly had as on-air guests.

“Fox therefore may have failed to report the issue truthfully or dispassionately by skewing questioning and approving responses in a way that fit or promoted a narrative in which Dominion committed election fraud,” Davis wrote. 

The judge further noted that it was questionable whether Fox News hosts were actually reporting on official lawsuit proceedings, especially given that the hosts allegedly mischaracterized the lawsuits on several occasions. He also appeared skeptical that Fox News employees were expressing their opinions.

“Fox’s news personnel repeatedly framed the issue as one of truth-seeking and purported to ground interview questions in judicial proceedings and evidence,” he added. “Reviewing the Complaint, the Court does not read Fox’s statements as mere statements of opinion.” 

Dave Heller, deputy director of the media law resource center, said there are still plenty of open questions to answer in the Fox News suit. He noted that Davis said he’d need additional briefing from both sides on whether Dominion was a public or private figure — a key distinction in defamation law. 

“Courts around the country are not always consistent and predictable about whether they hold companies to be public or private figures,” Heller said.

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