After Joe Biden was declared the winner of the 2020 presidential election, several hosts at Fox News, the powerful network that feeds the pulse of America’s conservatives, aired outlandish and false claims about the vote. Many of them had to do with Dominion, a voting equipment company founded in 2003 that most Americans had never heard of.
Over and over again, the network aired the lie that Dominion machines rigged the election and were flipping votes. It aired the lie that the company was founded in Venezuela to rig elections for dictator Hugo Chávez. And it aired the lie that Dominion had bribed government officials to use its machines.
None of those claims were true and Fox hosts, producers and top executives knew it. A stunning trove of internal communications obtained by Dominion shows there was widespread disbelief at the company; everyone from Fox’s CEO, Rupert Murdoch, to top hosts such as Sean Hannity and Tucker Carlson knew the claims were untrue, even as the network continued to air them to millions of Americans.
Those messages and the claims are now at the center of a blockbuster six-week jury trial now set to begin on Tuesday in Wilmington, Delaware, where Fox is incorporated after a delay was announced from the original schedule of Monday. Dominion is suing Fox News and its parent company Fox Corporation for defamation, seeking at least $1.6bn it says it is due to cover the reputational damage it suffered as a result of Fox’s lies. The jury could also choose to impose additional punitive damages.
The trial is seen as one of the strongest opportunities for holding Fox and Murdoch, accused for years of distorting the truth to rile up conservative viewers, accountable for its lies.
“It’s not just comeuppance on something insignificant,” said Angelo Carusone, the president of Media Matters for America, a left-leaning media watchdog group. “It’s become sort of a proxy for voting and January 6.”
It is extremely rare for a defamation case to go to trial – most are either dismissed or settled. US law sets an extraordinarily high bar that plaintiffs must clear to win a defamation case, requiring them to prove that someone acted with “actual malice” – knowing or reckless disregard for the truth – when they published a false claim.
But this case is unusual, experts say, because Dominion’s case is so strong. The evidence they have produced offers as close to smoking-gun evidence as one can get.
“Really crazy stuff. And damaging,” Rupert Murdoch wrote in a 19 November 2020 email as he watched Rudy Giuliani make false claims about Dominion at a press conference. “Sidney Powell is lying by the way. I caught her. It’s insane,” Tucker Carlson wrote in a text message on 18 November 2020, referring to one of Trump’s attorneys who continued to go on Fox’s air to spread false claims about Dominion. “It’s unbelievably offensive to me. Our viewers are good people and they believe it.”
By mid-November, Fox’s internal fact-checking operation, called the Brain Room, had investigated the claims about Dominion and determined they were false.
RonNell Andersen Jones, a first amendment scholar at the University of Utah, said the case was shaping up to be “the most important defamation case in generations”.
“It is ridiculously rare to have one of these actual malice cases in which the plaintiff can show the jury a series of statements that say, directly, ‘this is a lie’. Or ‘this is crazy’. Or ‘this is ludicrous’ or’ this source is lying’,” she said.
“You couldn’t make up a hypothetical of ‘what is actual malice’ that’s stronger than that,” said Lee Levine, a lawyer who has defended media organizations in defamation cases.
Lies about the 2020 election, like the ones spread by Fox, have seeped into orthodoxy of the Republican party and resulted in a wave of harassment against election officials, efforts to overturn election results, and the violence at the Capitol on January 6. It is now commonly referred to as the “big lie” in the US – the belief that elections cannot be trusted.
Dominion’s lawyers argue in court filings that Fox made a deliberate choice to play up such election lies because it was concerned about losing viewers to far-right competitors.
“Dominion’s narrative arc here is very much about the harm that this conscious, corporate lie did to the country and its people,” Jones said. “What’s unique about this case is that we also see the plaintiffs arguing that their case is about democracy preservation. That this lie was damaging not just to the individual voting machine company but to the entirety of the electorate and to the democracy itself.”
Fox talent, including Carlson, Hannity, Maria Bartiromo and Jeanine Pirro as well as Rupert and Lachlan Murdoch, will probably be key witnesses at the trial, setting the stage for weeks of a media frenzy in Wilmington, an otherwise quiet city where many US businesses are formally headquartered for tax benefits. Live testimony from Rupert Murdoch and top Fox hosts would offer a rare opportunity for Dominion’s lawyers to force some of the most powerful people in American media to answer questions under oath about whether they knowingly lied to their audience.
“There is a huge difference between seeing these emails and writing about them and having people talk about [how] Maria Bartiromo couldn’t answer that question or how Tucker Carlson was made to look like a fool on the stand,” Levine said. “I mean it’s a whole different order of magnitude.”
Levine and other observers have been baffled as to why Murdoch and Fox haven’t settled the case as they have been walloped by a drip of embarrassing revelations and the evidence. Murdoch has a history of settling high-profile cases against his media empire, including in 2011, when he settled with victims in the News of the World phone hacking scandal in the UK. He subsequently shut down the publication.
A $1.6bn verdict in Dominion’s favor, plus additional punitive damages, would sting Fox, but not be fatal for the company, which reported $13.97bn in revenue in the last fiscal year. ““In the coming weeks, we will prove Fox spread lies causing enormous damage to Dominion. We look forward to trial,” a Dominion spokesperson said in a statement.
A Fox spokesperson called the lawsuit “a political crusade in search of a financial windfall, but the real cost would be cherished first amendment rights”.
“While Dominion has pushed irrelevant and misleading information to generate headlines, Fox News remains steadfast in protecting the rights of a free press, given a verdict for Dominion and its private equity owners would have grave consequences for the entire journalism profession,” the spokesperson said.
But Fox is also facing additional legal trouble related to the case. Eric Davis, the Delaware superior court judge overseeing the case, appointed a special master on Wednesday to investigate whether Fox withheld evidence from Dominion’s lawyers after the company revealed Rupert Mudoch is an executive officer at Fox News. Abby Grossberg, a former Fox employee, is also suing the network, and says she was coerced into giving misleading testimony in the case.
“As counsel explained to thecourt, Fox produced the supplemental information from Ms Grossberg when we first learned it,” a Fox spokesperson said in a statement. “Rupert Murdoch has been listed as executive chairman of Fox News in our SEC filings for several years and this filing was referenced by Dominion’s own attorney during his deposition.”
The company also already faces a lawsuit from a shareholder who argues that company breached its fiduciary duty by allowing false claims to be broadcast, and a slew of similar lawsuits could follow.
Jeffrey Sonnenfeld, a professor at the Yale School of Management, said he knew of 12 firms that were “chomping at the bit” to bring shareholder lawsuits.
“The duty of loyalty was being ransacked here with a reckless disregard for the truth in a way that was hurting the value of the shareholders of assets,” he said. “Duty of care is they didn’t bother to follow up, didn’t bother to confirm anything, bother to correct anything.”
Davis has already issued a series of pre-trial rulings that are likely to help Dominion and limit what Fox can argue in its defense. Davis has ruled the statements Fox aired were false. He has also said the network can’t argue it was protected because its hosts were reporting newsworthy allegations. He also rejected the idea that Fox could avoid liability for false statements because guests at other times had been more skeptical of the claims.
Much of the fight at the trial is likely to be over whether specific people at Fox with control over the challenged statements knew the statements were false or acted with reckless disregard and allowed them to be aired anyway, Anderson said.
Fox could also focus much of its argument at trial focused on attacking the $1.6bn Dominion says it is owed in damages, arguing the number is vastly inflated. “I think they’re gonna try and keep the number down. And if they keep the number down, at the end of the day they can declare victory, even if they lose on liability,” Levine said.
Beyond Fox, the case could also have broader implications for the protections afforded to media outlets in the US. It is unfolding at a moment when prominent US conservatives, including supreme court justices Clarence Thomas and Neil Gorsuch, have suggested revisiting America’s libel laws to make it easier to sue media outlets. A win for Dominion would show that even though the US has an extraordinarily high bar to clear to prove a defamation case, it is still possible to hold a defamer liable.
The suit is also one of several measures under way across the US to hold those who spread insidious lies about the 2020 election accountable for their actions. Last year, a US House committee published a report laying bare how Donald Trump and key officials knew his claims about the election were false and continued to push them anyway. Trump and other key allies are also facing criminal investigations from the Fulton county district attorney and US justice department related to their activities to overturn the election.
Even if Dominion ultimately prevails in the case, though, it is unlikely to stop Fox from broadcasting the lie that the election was stolen, Carusone said. Indeed, the network has continued to embrace that lie amid the lawsuit, without specifically mentioning Dominion.
“They will become more artful liars,” he said. “I think it’ll slightly shift the threshold internally as to how much nonsensical conspiracy theories they’re willing to validate. And that will matter especially in an environment and a large portion of his base is still committed to this idea that we don’t have valid elections any more.”
