Fox’s Excuses Reinforce Dominion’s Defamation Case

Did Fox News actively promote the conspiracy theory that implicated Dominion Voting Systems in a “massive fraud” that supposedly denied Donald Trump a second term? Or did Fox merely report what the president and his representatives were saying?

Those questions are at the heart of the defamation lawsuit that Dominion filed against Fox in March 2021. For obvious reasons, Fox prefers the second interpretation. But in response to questions from Dominion’s lawyers, Fox Corporation Chairman Rupert Murdoch conceded that several Fox News and Fox Business hosts had “endorsed” the unsubstantiated fraud allegations that Trump lawyers Rudy Giuliani and Sidney Powell made on their shows after the 2020 presidential election.

During that deposition, which Dominion describes in a brief it filed this week, Murdoch nevertheless insisted that Fox as a whole had not endorsed Giuliani and Powell’s wild charges. That distinction is problematic for a couple of reasons.

First, the fact that Fox News reporters were appropriately skeptical of those claims does not absolve Fox of liability for the credulous reception that Giuliani and Powell received on shows such as Lou Dobbs Tonight. Second, Dominion argues that Murdoch, who was privately calling their story “really crazy stuff,” nevertheless decided not to intervene because he was worried about alienating Trump supporters.

Dominion says the responsibility for Giuliani and Powell’s baseless accusations extends beyond them and the hosts who repeatedly gave them a forum and lent credence to their claims. It includes producers and executives who knew or should have known those claims were false and had the power to stop hosts like Lou Dobbs from continuing to promote them. They chose not to do so, Dominion argues, because they were afraid of losing viewers to right-wing competitors.

In its summary judgment brief, Fox does not seriously address the culpability of Murdoch or other executives. Instead it focuses on what Fox News and Fox Business hosts said on the air or on Twitter, arguing that “a reasonable viewer” would view those statements as summaries of unproven allegations rather than assertions of fact. Fox also cites questions and comments that supposedly show the hosts did not take the truth of Giuliani and Powell’s claims for granted. These point-by-point rebuttals are so unpersuasive that Fox inadvertently reinforces Dominion’s case.

Before reading Fox’s brief, I was open to the argument that “Dominion has mischaracterized the record, cherry-picked quotes stripped of key context, and spilled considerable ink on facts that are irrelevant under black-letter principles of defamation law,” as Fox claimed in an emailed statement to Reason. “The core of this case,” Fox said, “remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan.” But after reading Fox’s brief last week, I was more persuaded than ever that Dominion’s claims have merit.

Consider Fox’s treatment of tweets in which Dobbs promoted Powell’s appearances on his show. If you “read all about Dominion and Smartmatic voting companies,” Dobbs declared in a November 14 tweet, “you’ll soon understand how pervasive this Democrat electoral fraud is, and why there’s no way in the world the 2020 Presidential election was either free or fair.” In a December 10 tweet, Dobbs echoed Powell’s claim that “the 2020 Election [was] a cyber Pearl Harbor,” adding that “the leftwing establishment have aligned their forces to overthrow the United States government.”

That tweet included an unattributed document averring that Dominion participated in that scheme. The document said the conspiracy also involved Smartmatic, Cuba, Venezuela, George Soros, the Chinese Communist Party, “the Democrat party,” and “the American media,” all of whom “aligned…against the will of the people of the US.” That document, we can surmise, was prepared by Powell. But Dobbs did not indicate who wrote it, and his tweet unambiguously endorsed its claims.

Would a reasonable reader conclude that Dobbs himself was lodging these allegations? Or would a reasonable reader conclude that “these statements came from Powell, not Dobbs,” as Fox maintains?

Fox also argues that “the forum of the statement—Twitter—reinforces the conclusion that Dobbs was not stating defamatory facts about Dominion,” because “Twitter is not a natural setting in which a reasonable viewer would conclude that she is hearing actual facts about the plaintiff.” The “common expectation” on Twitter, Fox says, “is that such statements ‘will represent the viewpoints of their authors and, as such, contain considerable hyperbole, speculation, diversified forms of expression and opinion.'” Fox seems to be implying that tweets, by their very nature, cannot be defamatory. Twitter users would be ill-advised to act on that reading of the law.

During a November 12 interview with Giuliani, Dobbs described the alleged election conspiracy as “the end game to a four-and-a-half-year-long effort to overthrow the President of the United States.” But according to Fox, “a reasonable viewer would have readily understood that the statement was Dobbs’ opinion, and a tentative one at that.” It was so tentative that Dobbs twice reiterated the same conclusion on his show the next day. That may have been “Dobbs’ opinion,” but it was based on the assumption that Giuliani and Powell were speaking the truth.

During a November 24 interview w