Where Dominion v. Fox Could Lead

Contested elections can have unexpected legacies. After the recount of the 2000 Presidential election results in Palm Beach County, Florida, a Canadian electrical engineer named John Poulos was struck, like most people, by what a mess it was. These were the days of the so-called Brooks Brothers riot and a Supreme Court fight that awarded Florida’s electoral votes to George W. Bush. Poulos was unimpressed by the voting technology, which featured poorly designed punch-card ballots that yielded hanging and dimpled chads, and overcounts and undercounts. During the next couple of years, he worked on building a better voting machine. He founded a company and, looking for a name, turned to the Dominion Elections Act of 1920, which had enfranchised many Canadian women. “We thought that would be a nice homage to helping voters vote,” he told Fortune.

Dominion Voting Systems is now reaching a decisive stage in a defamation lawsuit it has filed against Fox News and its parent, Fox Corporation, whose chairman is Rupert Murdoch. Dominion has asked for compensatory damages of as much as $1.6 billion—a figure that may change—saying that Fox and its on-air personalities promoted an “inherently improbable and demonstrably false preconceived narrative” that it had been involved in a grand scheme to rig the 2020 Presidential election. A Delaware Superior Court judge, Eric Davis, will hear arguments for summary judgment this week. If the case moves forward, a trial should begin in April. In many ways, it’s puzzling that Fox has allowed the case to proceed this far. The evidence that has been made public in pre-trial filings, including internal texts and e-mails, could hurt its standing with almost every imaginable constituency, including its core audience. In one text, the host Tucker Carlson said of Donald Trump, “I hate him passionately.”

What has kept Fox hurtling forward is, by its own account, the belief that the law is on its side, and that the standard for defamation laid out in the 1964 Supreme Court ruling in New York Times Co. v. Sullivan protects it. Sullivan requires a showing of “actual malice,” meaning that a statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not,” in cases brought by public officials, which the Court later extended to public figures. Fox’s assertion comes at a moment when Sullivan is under attack, particularly from the right, adding an ironic dimension to Fox’s reliance on it. (Justice Clarence Thomas has long expressed unhappiness with the standard.) As a result, Dominion v. Fox may have profound implications not only for the two companies but also for the legal framework in which the media operate.

Among the stories that Dominion says Fox promoted was that the company was actually the brainchild of associates of Hugo Chávez—Venezuela’s demagogic leftist President, who died in 2013—and was built to steal elections. The “Venezuela lie,” as the suit refers to it, involved cash being funnelled to Dominion from Cuba and China, so that its machines could deny Trump the White House. Dominion protested that it had no ties to Venezuela; in fact, its majority owner is Staple Street Capital, an American private-equity firm. But Fox guests, notably Rudy Giuliani and Sidney Powell, a Trump lawyer, kept repeating the theories as various hosts, the lawsuit argues, encouraged and even parroted them. Maria Bartiromo spoke about “the Venezuela connection.”

The panic on Fox News about Dominion, in other words, wasn’t just about worries that its voting machines could be vulnerable to hacking—though it highlighted that fear, too. (The company’s technology does allow paper ballots to be audited.) Rather, the effect was to make Dominion appear as a deliberately malign actor. Fox also became a venue for allegations that Dominion had paid kickbacks to government officials.

It’s possible to wonder whether Fox, from its central place in the Trumpist ecosystem, which was driven so much by one man’s fantasies, stopped seeing Dominion as a real company, employing real people, which could hire real lawyers. But the internal communications indicate that after Fox became the first major outlet to call Arizona for Joe Biden, many at the network became focussed on the fact that it had made Trump very angry, and might be losing viewers. Murdoch was attuned to this dynamic. The spirit of the place is captured in texts from Carlson to Sean Hannity after an on-air colleague tweeted that there was no evidence of voting systems being compromised. “Please get her fired. Seriously,” Carlson wrote, adding, “The stock price is down. Not a joke.”

The pursuit of favor and ratings is, Dominion says, what led Fox News to Venezuela, even though people at the network knew that it was a pretty strange place to be. As the host Dana Perino put it in a message, “Where the hell did they even get this Venezuela tie to dominion? I mean wtf.” The word “nuts” appears more than once in internal comments about Powell’s theories, including in the phrase, from one executive, “mind blowingly nuts.” On November 19th, Murdoch sent an e-mail with the subject line “Watching Giuliani!”; it read, “Really crazy stuff. And damaging.” Murdoch has acknowledged in a deposition that he could have stepped in more but did not.

Fox’s stance, basically, is that what it was doing was just journalism—reporting on “newsworthy allegations.” (It also pointed to accurate reports that it had aired.) The network has said that it is protecting “the free press,” and has suggested that, if it were to be held liable, so might any other outlet that reported on Trump’s election complaints. In Fox’s telling, Sullivan stands or falls with it. This was something of a bluff, given the evidence that Fox News may have been pretty reckless, under the existing standard. Still, there’s a risk that a loss by Fox News, if the case is eventually appealed to the Supreme Court, might indeed bring changes to the Sullivan doctrine.

But a Fox victory has the potential to be profoundly disruptive, too, because it would suggest that almost nothing could meet the actual-malice test. Such an outcome could in its own way undermine Sullivan, by making it seem meaningless—an empty promise of recourse. That result could itself push the Court to an even broader reconsideration of press freedom. Times v. Sullivan has been vital to the press’s ability to bring criticisms of those with power to light. If the decision instead becomes synonymous with the idea that ordinary people can be defamed with impunity, it cannot long survive. And it is worth saving. ♦

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