A Network of Lies: Dominion Voting System’s Defamation Case Against Fox News

by Sarah Jana, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

In the days following the 2020 presidential election, Fox News reported to its viewers that the nation was being left in the dark.¹ “Here’s the point,” host Tucker Carlson declared, “[w]e don’t know how many votes were stolen on Tuesday night. We don’t know anything about the software that many say was rigged.”² The software he was referring to was created by Dominion Voting Systems (Dominion)³—a company that supported voting in more than 40% of jurisdictions across the country.⁴ “Here’s what we do know,” Carlson continued, “our system isn’t what we thought it was . . . . We wish that wasn’t true. But it is true. And you are not crazy for knowing it. You’re right.”⁵

Privately, however, Fox News hosts and employees were singing a different tune.⁶ “The software shit is absurd,” Carlson told his producer.⁷ The producer agreed, stating, “I don’t think there is evidence of voter fraud that swung the election.”⁸ Still, Fox News continued to report to millions of viewers that Dominion’s software had stolen the election.⁹ And viewers believed it.¹⁰

Months later, and after several warnings, Dominion sued Fox News,¹¹ alleging its statements defamed the company and caused economic and reputational damage.¹² This article describes the substance of Dominion’s case against Fox News and predicts its outcome. Section II will describe the background of the case and the legal standard governing it. Section III argues that Dominion is likely to win. Section IV will conclude.

II. Background

Prior to the litigation at issue, the landmark case New York Times v. Sullivan changed defamation law and set the standard that will govern Dominion’s claims.¹³

A. New York Times v. Sullivan

In 1960, the New York Times ran an advertisement in support of Dr. Martin Luther King, Jr., and civil rights protestors.¹⁴ The advertisement claimed that “truckloads of police . . . ringed the Alabama State College Campus” and “padlocked” a dining hall.¹⁵ It also stated that “Southern violators” bombed Dr. King’s home and arrested him seven times.¹⁶ The supervisor of the police department sued the paper for libel, claiming it had made false claims against him.¹⁷

Importantly, both parties and the Supreme Court recognized that some of the claims were indeed false.¹⁸ For example, the dining hall was never padlocked, and Dr. King had been arrested only four times, not seven.¹⁹ Still, the Court noted that because of the importance of the First Amendment and public debate, defamation cases involving public officials should require more than falsity and damage.²⁰ In a unanimous decision, the Court set a new standard, holding a public official must prove “that the defamatory statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”²¹

Sullivan has protected free debate over public issues for decades.²² Actual malice is a high legal standard, one that the Justices recognized would be “elusive, abstract, hard to prove and hard to disprove.”²³ Indeed, since Sullivan, media outlets rarely lose defamation cases.²⁴ Fox News, however, may be one of the few and could lose their case against Dominion.²⁵

B. The 2020 Election, Fox News Coverage, and Dominion Voting Systems

On November 2, 2020, Fox News became the first television network to project that Joe Biden would win the swing state of Arizona—making victory for incumbent President Donald Trump all but impossible.²⁶ Within two days, viewers made their disappointment known by switching to rival news sources.²⁷ What they wanted to see, it seemed, was coverage of a conspiracy theory promulgated by President Trump himself: that the election had been stolen.²⁸

Alarmed at losing viewers, Fox News shifted its coverage to reporting on the conspiracy theories.²⁹ Sidney Powell, a lawyer bringing frivolous lawsuits challenging the election results, became a recurring guest.³⁰ Publicly, the network presented her as “one of the country’s leading appellate attorneys” and a “great American.”³¹ But privately, Fox News employees had a different view, calling her “a nut,” “wackadoodle,” and “shockingly reckless.”³²

The network also identified Dominion as the culprit in the conspiracy.³³ Powell stated on Fox News that “computer glitches” in Dominion’s software were responsible for “flipping votes in the computer system or adding votes that did not exist.”³⁴ Dominion sent the network a series of emails entitled “Setting the Record Straight” and provided proof that the election had been secure.³⁵ But just two days later, Fox News invited Sidney Powell to appear again, where she claimed, “[Dominion] is one huge, huge criminal conspiracy that should be investigated.”³⁶

On November 8, 2021, Dominion sued Fox News in state court for $1.6 billion, claiming the network knowingly and recklessly made defamatory statements that caused significant reputational and economic damage.³⁷ Dominion’s claim is rare among defamation cases and may be one of the few where a plaintiff actually succeeds in suing a major news network.

III. Discussion

Dominion is likely to prevail on its claims for a few reasons. First, the sheer number of defamatory statements at issue makes this case unique.³⁸ In most defamation cases, plaintiffs challenge a single statement made by the defendant.³⁹ But in this case, Fox News repeatedly and consistently reported its defamatory statements against Dominion for months, spreading false statements to millions of viewers on an almost nightly basis.⁴⁰ Fox News did this even after Dominion provided it with evidence that the claims were false and defamatory.⁴¹ So even if Fox can prove that some statements were not made with actual malice, the volume of statements made over time makes it likely that it will be liable for at least some of its coverage.⁴²

Second, Fox News’ defenses in the case are not likely to succeed.⁴³ In response to Dominion’s suit, Fox News has raised three defenses: the neutral report defense, the opinion defense, and the fair report defense—all of which protect reporters from defamation.⁴⁴ Each of these defenses require that reporting be based on an official and responsible source.⁴⁵ The court in the Dominion case has already addressed these defenses and denied Fox News’ motion to dismiss, finding them to be without merit at that stage in the case.⁴⁶

Additionally, the Southern District of New York has addressed some of Fox News’ defenses in a parallel case and similarly found them unpersuasive.⁴⁷ In that case, the court noted the network’s reliance on untrustworthy sources, stating: “Sidney Powell was not a responsible source. Several election experts and government agencies already debunked her theories of election fraud well before the challenged statements were made.”⁴⁸ Based on this reasoning, it seems likely that Fox News’ extensive coverage of Powell’s conspiracy claims would not be protected by any defense.⁴⁹ The network opened itself up to a great amount of liability by repeatedly allowing Powell to appear on air.⁵⁰ Because Fox News’ coverage of the 2020 election and its aftermath was neither neutral nor fair, its defenses will likely fail.⁵¹

Finally, this is one of the few cases where actual malice can be proven.⁵² In most defamation cases, “actual malice” is proven through inference, mostly because actual evidence that a defendant knew something was false before he said it is rare.⁵³ Here, there is ample evidence that Fox News knew the statements related to election fraud were bogus and it ran the stories anyway.⁵⁴ Network executive Rupert Murdoch, for example, admitted under oath that Fox News hosts had endorsed and promoted the conspiracy theories while on air.⁵⁵ And on the few occasions that Fox News hosts and reporters did attempt to challenge the conspiracy theories, network executives chastised or disciplined them—making clear that the network would only air stories that cast doubt on the election results.⁵⁶

The documents uncovered in this case paint a picture of a network that—in pursuit of profits—aired stories that multiple levels of investigators, reporters, and executives knew to be false.⁵⁷ If there were ever a case where a network published stories with “knowledge or reckless disregard of whether it was true or not,” this is it.⁵⁸

IV. Conclusion

Overall, if the case goes to trial, Dominion will likely prevail.⁵⁹ Overwhelming evidence shows that Fox News executives, reporters, and hosts were aware that the theories that Dominion’s voting machines had stolen votes from President Trump had no basis in fact.⁶⁰ Still, the network repeatedly aired and discussed the claims anyway, indicating it was more concerned about profits than providing its viewers with accurate information.⁶¹ In doing so, it deceived millions of viewers who trusted the network to report the truth.⁶² The court must and should hold the network accountable for its actions and enter a judgment in favor of Dominion.

Cover Photo by Adam Fagen on Flickr and licensed under CC BY-NC-SA 2.0.

Sarah Jana

Sarah Jana is a 3L at the University of Cincinnati College of Law. Prior to law school, Sarah received her undergraduate degree in Public Affairs from The Ohio State University and a master's degree in Elementary Education from Lesley University. Sarah writes primarily on topics involving education and civil rights law and hopes to work in the public interest field in the future.

References

1
Stuart A. Thompson et al., What Fox News Hosts Said Privately vs. Publicly About Voter Fraud, N.Y. Times (Feb. 25, 2023), https://www.nytimes.com/interactive/2023/02/25/business/media/fox-news-dominion-tucker-carlson.html [https://perma.cc/SQ69-UBRK].
2
Id. This specific quote comes from a video clip of Tucker Carlson’s November 9, 2020 show.
3
Id.
4
Neena Satija, What You Need to Know About Dominion, the Company that Trump and His Lawyers Baselessly Claim ‘Stole’ the Election, Wash. Post. (Nov. 20, 2020), https://www.washingtonpost.com/politics/2020/11/20/dominion-voting-trump-faq/ [https://perma.cc/BR7N-6TCY].
5
Id.
6
Id.
7
Id. This specific quote comes from Tucker Carlson’s private messages on November 8 and 9, 2020.
8
Id.
9
Thompson et al., supra note 1.
10
Adam Gabbatt, What Happens When a Group of Fox News Viewers Watch CNN for a Month?, The Guardian (Apr. 11, 2022), https://www.theguardian.com/media/2022/apr/11/fox-news-viewers-watch-cnn-study [https://perma.cc/6WY3-LJJG] (citing a poll showing that Fox News viewers “are far more likely to believe the false claim that the 2020 presidential election was stolen than the average American”).
11
In the lawsuit, Fox News and Fox Corporation appear as two different defendants. For ease and brevity, this article will refer to both as “Fox News.”
12
Mary Yang, Compare the Election-Fraud Claims Fox News Aired with What Its Stars Knew, NPR (Feb. 18, 2023), https://www.npr.org/2023/02/18/1157972219/fox-news-election-fraud-claims-vs-what-they-knew [https://perma.cc/F7DD-RS7E].
13
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
14
Id. at 256-58.
15
Id.
16
Id.
17
Sullivan, 376 U.S. at 258.
18
Id. at 258-59.
19
Id. at 259.
20
Id. at 264-80.
21
Id. at 279-80.
22
John Bruce Lewis & Bruce L. Ottley, New York Times v. Sullivan at 50: Despite Criticism, the Actual Malice Standard Still Provides ‘Breathing Space’ for Communications in the Public Interest, 64 DePaul L. Rev. 1, 63 (2014).
23
Sullivan, 376 U.S. at 298 (Black, J., concurring).
24
David Folkenflik, Fox New Stands in Legal Peril. It Says Defamation Loss Would Harm All Media., NPR (Mar. 6, 2023, 5:19 AM), https://www.npr.org/2023/03/06/1161221798/if-fox-news-loses-defamation-dominion-media.
25
Id.
26
David Folkenflik, How a Civil War Erupted at Fox News After the 2020 Election, NPR (Mar. 8, 2023), https://www.npr.org/2023/03/08/1161694400/fox-news-lawsuit-civil-war-ingraham-hannity [https://perma.cc/7Y8E-PH56].
27
Thompson et al., supra note 1.
28
Id.
29
Id.
30
Id.
31
Id.
32
Id.
33
Yang, supra note 12.
34
Id.
35
Id.
36
Id.
37
Complaint ¶¶ 193-204, US Dominion, Inc. v. Fox Corporation, No. N21C-11-082 (Del. Super. Ct. filed Nov. 8, 2021).
38
Jeremy W. Peters, Defamation Suit About Election Falsehoods Puts Fox on Its Heels, N.Y. Times (Aug. 13, 2022), https://www.nytimes.com/2022/08/13/business/media/fox-dominion-lawsuit-first-amendment.html [https://perma.cc/UK5M-NNBS].
39
Id.
40
Id.
41
Yang, supra note 12.
42
Peters, supra note 38.
43
Folkenflik, supra note 24.
44
See US Dominion, Inc. v. Fox News Network, LLC, No. N21C-03-257 EMD, 2021 WL 5984265 at *22-28 (Del. Super. Ct. Dec. 16, 2021), cert denied, No. N21C-03-257 EMD, 2022 WL 100820 (Del. Super. Ct. Jan. 10, 2022), and appeal refused, 270 A.3d 273 (Del. Jan. 31, 2022) (Delaware Superior Court’s opinion denying Fox News’ motion to dismiss in this case and outlining the different defenses presented). The “neutral reportage” defense bars recovery where challenged statements are “newsworthy,” even if those statements are defamatory. Id. at *23. The “opinion defense” is a fact-based defense that makes statements of “pure opinion” nonactionable, as opposed to statements of fact. Id. at *26-27. The “fair report” defense exists under New York law to protect “fair and true” reports of “official proceedings.” Id. at *25.
45
Id. at *22-28.
46
Id.
47
Khalil v. Fox Corporation, No. 21 Civ. 10248 (LLS), 2022 WL 4467622 (S.D.N.Y. Sept. 26, 2022). The Khalil case was brought by a Venezuelan business executive who sued after Fox News falsely suggested that he was “the ‘COO’ of the election under Chavez and Maduro” and was “a liaison with Hezbollah.” Id. at *2.
48
Id. at *5-7.
49
Folkenflik, supra note 24.
50
Id.
51
Id.
52
Id.
53
See Solano v. Playgirl, Inc., 292 F.3d 1078, 1085 (9th Cir. 2022) (“The subjective determination of whether [the defendant] in fact entertained serious doubts as to the truth of the statement may be proven by inference, as it would be rare for a defendant to admit such doubts.”).
54
See Thompson et al., supra note 1; Yang, supra note 12.
55
Jeremy W. Peters & Katie Robertson, Murdoch Acknowledges Fox News Hosts Endorsed Election Fraud Falsehoods, NYT (Feb. 27, 2023), https://www.nytimes.com/2023/02/27/business/media/fox-news-dominion-rupert-murdoch.html [https://perma.cc/U7C9-6NAV].
56
On November 19, 2020, for example, Tucker Carlson pressed Sydney Powell for evidence behind her claims, suggesting that her claims were unreliable and had not been proven. Thompson et al., supra note 1. After viewers pushed back against Carlson, however, he gave in, returning to his earlier suggestions that there was validity in election fraud claims. Id. In another example, Fox News White House reporter Kristin Fisher described a report on election fraud by Rudy Giuliani as “light on facts” and pushed back against his claims. Folkenflik, supra note 26. She later lost reporting assignments and noted to a colleague, “I’m being punished for doing my job. Literally. That’s it.” Id.
57
Thompson et al., supra note 1.
58
Folkenflik, supra note 24.
59
See discussion supra Part III.
60
See discussion supra Part II.
61
Id.
62
Id.