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Why Fox News had a bad week in 2020 election defamation cases

Multibillion dollar lawsuits are closing in on Fox News Network for pushing Donald Trump's Big Lie but knowing better.


It’s not just Georgia grand jurors this week who rejected the lie that the 2020 election was stolen from Donald Trump.

We learned from an explosive legal filing made public on Thursday that evidence suggests top Fox News hosts and executives didn’t believe it, either.

Yet, as the brief from voting equipment company Dominion Voting Systems in its multibillion-dollar defamation case against Fox News argues, the network still promoted false claims of election fraud, with conspiracy theories that Dominion machines were somehow used to steal the election from Trump. It’s worth reading the lengthy filing in its entirety, which begins by citing a communication from host Tucker Carlson to his producer in November 2020 that bluntly states, referring to a top election denier and MAGA lawyer, “Sidney Powell is lying.” It gets crazier from there.

The voting company’s cache of damning statements against the network would surely be powerful evidence in front of a jury.

Dominion’s brief was filed in the Delaware Superior Court last month in support of its motion for summary judgment. That is, the company is arguing that its liability claims against Fox News are so strong that it should win even before trial. Dominion’s lawyers concede that it’s unusual to go for that argument in a defamation case, given the plaintiffs’ heavy burden. They note that plaintiffs usually have to show actual malice — that defendants knew or recklessly disregarded the truth — by inference, because it’s rare to find direct evidence of a defendant knowingly pushing false information.

But this case is different, Dominion argues, alleging in the brief that there is extensive direct evidence against Fox that the network kept airing unhinged election claims while knowing better. That’s one of the points that leads the voting company to argue that a trial isn't needed for Dominion to win, because the company says “no reasonable juror could find in Fox’s favor.”

Whether the Delaware court agrees with Dominion about that or not, the voting company’s cache of damning statements against the network would surely be powerful evidence in front of a jury, if the case goes to trial. The network, for its part, argues that Dominion’s suit “assails the First Amendment and the news media’s duty and right to report on matters of significant public interest without fear of liability.” While the court's ruling on the matter could have implications for the actual news media more broadly, it's unclear what that has to do with Fox News, which, as Dominion's brief argues, wasn't really acting as a news organization.

But that’s just one of the legal developments Fox News had to contend with this week. In a case involving another voting company swept up in 2020 election conspiracies, Dominion competitor Smartmatic, a New York state appeals court ruled unanimously that Smartmatic's defamation case could move forward against the network, hosts Jeanine Pirro and Maria Bartiromo, ex-host Lou Dobbs and Rudy Giuliani. The appeals court even reinstated claims that were dismissed by a trial judge against Pirro and Giuliani, noting that, according to Smartmatic’s complaint:

Fox News, Dobbs, and Bartiromo stated that Smartmatic’s election technology and software were widely used in the 2020 election and in Dominion machines to switch votes, when they actually knew, or easily could have known had they not purposefully avoided publicly available knowledge, that in 2020, the Smartmatic technology was used only in Los Angeles County and that the vote switching claims otherwise had no support ... Based on the same reasoning, the claims against Pirro, which are based on similar allegations of defamatory statements made with actual malice, must be reinstated.

So despite how difficult it can be for plaintiffs to successfully bring defamation suits, the Fox News universe’s brazen participation in the Big Lie shows that such success is possible. To what degree, exactly, we'll have to see how these cases develop to find out.