Dominion Voting Systems v. Fox News Network

After Trump's defeat in the 2020 presidential election, Fox News host Jeanine Pirro promoted baseless allegations on her program that Dominion and its competitor Smartmatic had conspired to rig the election against Trump. Hosts Lou Dobbs and Maria Bartiromo also promoted the allegations on their programs on sister network Fox Business.[1] In December 2020, Smartmatic sent a letter to Fox News demanding retractions and threatening legal action, specifying that retractions "must be published on multiple occasions" so as to "match the attention and audience targeted with the original defamatory publications."[2] Days later, each of the three programs aired the same three-minute video segment consisting of an interview with an election technology expert who refuted the allegations promoted by the hosts, responding to questions from an unseen and unidentified man. None of the three hosts personally issued retractions. Smartmatic filed a $2.7 billion defamation suit against the network, the three hosts, Trump campaign attorney Sidney Powell and Trump personal attorney Rudy Giuliani in February 2021.[3] In an April 2021 court brief seeking dismissal of the suit, Fox attorney Paul Clement argued that the network was simply "reporting allegations made by a sitting President and his lawyers."[4] The Smartmatic suit remains pending as of March 2023.[5]

In December 2020, Dominion sent a similar letter demanding retractions to Trump attorney Sidney Powell,[6][7][8] who had promoted the allegations on Fox programs.[9][10][11] On March 26, 2021, Dominion filed a $1.6 billion defamation lawsuit against Fox News, alleging that Fox and some of its pundits spread conspiracy theories about Dominion, and allowed guests to make false statements about the company.[12] On May 18, 2021, Fox filed a motion to dismiss the lawsuit, asserting a First Amendment right "to inform the public about newsworthy allegations of paramount public concern."[13] The motion to dismiss was denied on December 16, 2021 by Davis.[14] In addition to Bartiromo, Dobbs, and Pirro, the suit also named primetime hosts Tucker Carlson and Sean Hannity.[15]

Specifically, Dominion focused on allegations made between November 2020 and January 2021 by Maria Bartiromo on her show Sunday Morning Futures with Maria Bartiromo and Fox & Friends; by Carlson on Tucker Carlson Tonight; by Dobbs on Lou Dobbs Tonight and on Dobbs's Twitter account; by Hannity on Hannity; and by Pirro on Justice with Judge Jeanine. Guests who often appeared during these segments included Rudy Giuliani and Sidney Powell.

Dominion was represented by law firms Clare Locke, Farnan LLP, and Susman Godfrey.[16] Fox retained Clement & Murphy, DLA Piper, Ellis George Cipollone, Lehotsky Keller, Richards Layton & Finger, and Winston & Strawn.

In addition to asserting First Amendment protection, Fox News also cited the landmark 1964 Supreme Court decision New York Times Co. v. Sullivan that found a public figure seeking to prove defamation must demonstrate that a publisher acted with actual malice: that they knew what they published was false or recklessly disregarded whether it might be false.[17]

In June 2022, Davis again declined to dismiss the Dominion suit against Fox News, and also allowed Dominion to sue the network's corporate parent, Fox Corporation. Davis ruled that Fox Corporation chairman Rupert Murdoch and CEO Lachlan Murdoch may have acted with actual malice because there was a reasonable inference they "either knew Dominion had not manipulated the election or at least recklessly disregarded the truth when they allegedly caused Fox News to propagate its claims about Dominion." He noted a report that Rupert Murdoch spoke with Trump a few days after the election and informed him that he had lost.[18]

caption=Dominion brief of February 16, 2023, containing Fox News internal communications

The New York Times reported in December 2022 that Dominion had acquired communications between Fox News executives and hosts, and between a Fox Corporation employee and the Trump White House, showing they knew that what the network was reporting was untrue. Dominion attorneys said hosts Sean Hannity and Tucker Carlson, and Fox executives, attested to this in sworn depositions. In November 2020, Sidney Powell appeared on Hannity and asserted Dominion machines had been rigged, but Sean Hannity said in his deposition, "I did not believe it for one second."[19] A February 2023 Dominion court filing showed Fox News primetime hosts messaging each other to insult and mock Trump advisers, indicating the hosts knew the allegations made by Powell and Giuliani were false. Rupert Murdoch messaged that Trump's voter fraud claims were "really crazy stuff," telling Fox News CEO Suzanne Scott that it was "terrible stuff damaging everybody, I fear." As a January 2021 Georgia runoff election approached that would determine party control of the Senate, Murdoch told Scott, "Trump will concede eventually and we should concentrate on Georgia, helping any way we can."[20][21][22][23]

The New York Times, on August 13, 2022, noted that there had been no movement towards settlement from either Dominion or Fox, and both "are deep into document discovery, combing through years of each other's emails and text messages, and taking depositions".[24] They reported that sources "expected Rupert and Lachlan Murdoch, who own and control the Fox Corporation, to sit for depositions as soon as this month".[24] Citing sources at Fox News, speaking under condition of anonymity, they reported "Anchors and executives have been preparing for depositions and have been forced to hand over months of private emails and text messages to Dominion."[24] Among the current and former Fox personnel who have given or were set to give depositions in August were Steve Doocy, Dana Perino, and Shepard Smith.[24] Sources also told the Times that Dominion was focusing on Lachlan Murdoch's reaction to President Trump's anger at the network calling Arizona for Biden, seeking to place him "in the room when the decisions about election coverage were being made".[24] Accounts hold that the younger Murdoch did not pressure anyone to reverse the call, but "he did ask detailed questions about the process that Fox's election analysts had used after the call became so contentious."[24] While Fox continued to claim that any statements made on air were covered by the First Amendment, and as such can not be considered defamation, the Times reported that "Fox has also been searching for evidence that could, in effect, prove the Dominion conspiracy theories weren't really conspiracy theories."[24] After allegations arose that Venezuelan dictator Hugo Chávez—who died in 2013—was involved in rigging voting machines, lawyers for Fox in court filings asked Dominion to turn over any internal communications going back over a decade that include any of the words "Hugo", "Chávez", "tampered", "backdoor", "stolen", or "Trump".[24] Fox's hiring of Dan K. Webb in the summer of 2022 was seen as "a sign that executives believe that the chances the case is headed to trial have increased".[24]

On August 31, 2022 Sean Hannity was deposed by Dominion's lawyers.[25] The New York Times noted that in most defamation cases settlements are reached before any depositions are taken. As an example they pointed to how Fox News had settled in 2020 after the parents of Seth Rich sued due to Hannity and other Fox personnel trying to link his death to an email hack. In that case Fox settled the case before Hannity could be deposed.[25] This was taken as further proof that both sides anticipated the case going to trial.[25]

In early December 2022, the Delaware Superior Court filed notice that Lachlan Murdoch would be deposed under oath at a Los Angeles law firm. The deposition was set to begin on December 5 and "will continue from day to day (Sundays and holidays excluded) until complete, unless otherwise agreed".[26] Also in early December 2022, the Delaware Superior Court filed a notice that Rupert Murdoch would be deposed under oath on December 13–14 via video conference.[27] Previously Fox's lawyers had stated that any efforts to depose the Murdochs and put them at the center of the case would just be a "fruitless fishing expedition".[25]

Elon University School of Law professor Enrique Armijo noted that it is "so rare to have such contemporaneous evidence of a defamation defendant's state of mind when the statements are being made".[44]

Howard Kurtz, host of the Fox News program Media Buzz, called the case "a major test of the First Amendment." Kurtz had two weeks earlier told his viewers that the network would not allow him to discuss the case.[45]