Dominion Voting Systems on Friday filed a $1.6-billion defamation lawsuit against Fox News, alleging that the cable news giant tried to shore up its flagging ratings by falsely claiming that Dominion had rigged the 2020 election.
....In the lawsuit, Dominion argues that Fox News, which amplified inaccurate assertions that Dominion altered votes, “sold a false story of election fraud in order to serve its own commercial purposes, severely injuring Dominion in the process,” according to a copy of the lawsuit obtained by the Associated Press.
....“This was a conscious, knowing business decision to endorse and repeat and broadcast these lies in order to keep its viewership,” attorney Justin Nelson said.
I imagine that the standard for proving libel in this case is "reckless disregard for the truth," which sure seems like precisely what Fox News was guilty of. They knew perfectly well that Dominion hadn't rigged its machines, but they said so anyway because they knew their audience wanted to hear stuff like that.
Am I concerned about the precedent of finding a news outlet guilty of libel? I'll let you know if and when a news outlet gets sued.
"Am I concerned about the precedent of finding a news outlet guilty of libel? I'll let you know if and when a news outlet gets sued."
ZING!
Good one, Kevin!
If we can't sue a media organization for spreading lies, then libel laws have no reason to exist.
exactly. why would i be concerned about the precedent set of suing a company that broke the law?
NAL here, but IIRC reckless disregard is the standard for non-"public figures," while the standard for public figures is higher, ie "actual malice."
Commentary I've seen by torts lawyers suggests that Dominion seems to have a good case.
In any case, since obviously a lot of it will turn on intent, I would expect the discovery to be far-reaching, and since it's Fox, to turn up all kinds of stinky sludge.
I'm betting that Fox will work hard to settle out of court, with sealed records, to keep that really bad stuff from coming out.
That’s an interesting question. In my view, only an unequivocal jury verdict or settlement keeps Dominion a viable entity able to contract with governments. Any kind of a settlement that included confidential aspects would almost certainly spell the end of Dominion as a viable business.
So, unless these lawsuits are a sort of “going out of business” sale where they’re just generating as much money as they can before shutting down, I think the reality is that they’re in it to win it. Either total victory or acceptance of an unequivocal surrender by the Murdoch family.
Very interesting point!
Agree with points by both Doctor Jay and Mitch Guthman, and if I had to guess, it would be that Dominion knows its brand is lost, so they fully intend to declare bankruptcy, but since nobody can tell one voting machine from another apart from the nameplate, they'll just restart with a different name and a new bezel, which in turn means they may indeed ultimately agree to a sealed settlement, but they have no reason not to extort every last penny out of Murdoch.
I honestly don’t see a way back for Dominion; which, of course, is the essence of their claim for damages. Even with a new name, I can’t see any election administrators signing up for their services since one can safety assume that the Republicans will repeat this same strategy anytime they lose an election so a contract with the Dominion successor is just buying more trouble.
It’s hard to see how this ends except with a settlement or the case being dismissed by a Federalist Society judge. I think Fox News is going through everyone’s emails and texts to see how bad it might be before offering to settle.
Dominion doesn't have to agree to a sealed settlement. I think public apologies and large checks will make a difference.
That’s true, Dominion doesn’t have to agree to any kind of confidentiality as part of the settlement. The question from their perspective is whether they’re trying to rescue the brand and remain as a going concern or whether the know their business is forever ruined even if Fox News recants and they are trying to salvage what they can—in which case Fox News can certainly write a large enough check to buy Dominion’s silence.
The other interesting settlement related question is whether Murdoch has insurance that covers defamation. I don’t mean that as a snarky comment but rather as an actual question. If I was their insurance company, the Tucker settlement combined with Fox’s business model would make me seriously worried. They dodged the Tucker bullet through a combination of a very strange judicial situation and the fact that the Playboy playmate in question doesn’t seem to have the resources to appeal. Essentially drawing to an inside straight flush is not a combination that insurance companies generally see as a viable risk management plan.
It’s not clear to me whether Dominion is a “public figure” (highest burden of proof on libel plaintiffs) or an “involuntary public figure” (lower burden-frequently expressed as reckless disregard). But the pleadings and the lawyer’s statements suggest that Dominion thinks it can prove actual malice.
But, even if it would be generous to Fox News, I believe that a court would classify Dominion as an involuntary public figure. Before the election it was largely an unknown company providing goods and services to states out of the limelight.
Fox's defence would be (as has already been tried by a Trump lawyer): Anyone who takes what we say seriously is obviously crazy.
It actually was already used by Fox itself in the (former Playboy model) Karen McDougal defamation suit against Tucker Carlson. And it was successful.
"But Fox News argued that Carlson "cannot be understood to have been stating facts, but instead that he was delivering an opinion using hyperbole for effect," the ruling said. It added that Fox News "submits that the use of that word or an accusation of extortion, absent more, is simply 'loose, figurative, or hyperbolic language' that does not give rise to a defamation claim."
US District Judge Mary Kay Vyskocil agreed with Fox's premise, adding that the network "persuasively argues" that "given Mr. Carlson's reputation, any reasonable viewer 'arrive[s] with an appropriate amount of skepticism' about the statements he makes."
That judge should be removed as deliberately ignoring the common knowledge that regular Fox viewers obviously have no "appropriate amount of skepticism."
In this instance, plaintiff can bring evidence that many viewers did receive the statements as factual, and it is reasonable to expect that Fox knew that or would anticipate that.
Show the YouTube clip, "If Martin Scorsese shot the January 6, 2021, Insurrection".
It would have looked exactly the same.
I think a Tarantino version would be better. The insurrectionists would make a mistake and wind up in the FBI building where the Q Shaman is incinerated with a flame thrower. Meanwhile Don is tossed off the balcony of the White House by Melania in revenge for the Stormy Daniels affair.
...and that in acting that way Fox demonstrates the malice with which they carry their activity.
If that were the case wouldn't the channel be Fox Opinion, rather than Fox News?
It's more that FOXnews is the the Magic Hour by other means.
Hard to say, because in an historically accurate context, the “Federalist Society” is similarly misnamed since it’s politics and governing philosophy (such as it is) would actually make them the “anti-Federalist” society.
As a mere novice in these legal things, it seems to me a key distinction in the two defamation suits is the ambiguity of any financial damage done to McDougal by the Fox News claims compared to the very clear, extensive -- if not existential -- financial damage to Dominion by the lies about their voting machines. I bet the company even has financial and contractual records which provide concrete evidence of already sustained damage. The defense Fox News used in the McDougal case therefore wouldn't work.
...and Fox settled, but kept the settlement secret until after the election.
In contrast to Dominion's suits against Powell, Wood, and Giuliani, I don't think this has much chance of success. Fox "News" can claim its reporters were just "covering" a controversial opinion and that "the views expressed on this program are solely those of the guests, and not Fox News or Fox Corp or any of its corporate subsidiaries" (read in a super-fast voice-over). Meanwhile, as was pointed out above, Fox can claim that its prime-time pundits are just infotainer-hacks who no-one takes for serious news reporters. It's worked before.
Dominion definitely has a tighter needle to thread here.
Obviously, everything depends on what nasty stuff is residing on people’s servers and mobile phones etc. Remember, the allegations here are of actual malice which essentially are that Fox News either knew what their “personalities” and/or guests were saying was false or in the category of “too good to fact check”. Either of which puts Fox News right behind the eight ball.
The opinion defense from Tucker’s is unlikely to be successful for a million different reasons of well settled law. The judge’s ruling was an extreme outlier even among the most poorly reasoned outskirts of defamation law. And unlikely financially struggling former Playboy playmates, Dominion looks to have the resources to appeal such an idiotic ruling to more capable, better educated judges.
The Powell defense might come into play: "Nobody with any brains thinks what these people say is factual." But the Fox viewers might take offence at that, so I expect they'll try to settle.
It’s really just a variation on the Hustler parody defense. The cartoon in that case was an obvious parody. By contrast, Fox News claims to be a journalistic organization, with all the trappings and pretensions of one. The Onion or The Daily Show are obvious parodies.
As far as I’m aware, the Fox News version of this defense has only been accepted by a trial court judge in a singularly poor reasoned and ill supported opinion. If Powell continues to rely on that defense, I believe she’ll be living in her car in the very near future.
https://www.dmlp.org/legal-guide/opinion-and-fair-comment-privileges
Good point, though it's worth noting:
The Daily Show bases its schtick on using factual news, to the point where many people treat it as a real news source (favoring it over outlets like CNN, et al). And it works, because it's obvious to the viewers where the news ends and the joke begins.
Fox is neither factual nor funny.
just covering a controversial opinion doesn't work as a defense, especially considering there wasn't so much as a single solitary shred of evidence backing up utterly outrageous claims. it's a complete disregard for the truth. fox presented this stuff as fact, not opinion. there was no push-back at all. there were no "allegedlys," no "the presidient believes," no weasel words of any sort and no push-back on it as there would be if this was done by anyone with minimal familiarity as to how journalism works.
Free speech isn't and shouldn't be a defense against fraud or libel.
I expect Fox will settle out of court. Having the likes of Dobbs, Ingraham and Bartiromo deposed during discovery under penalty of perjury would be very damaging. The best they could say would be they sincerely believed what they broadcast to be true, despite a total absence of evidence supporting it. The best Fox could argue would be that that reasonable people don't take them seriously, thereby labelling their core viewers a bynch of unreasonable rubes. They already did it once, with Carlson. Doing it in a high profile case like this would wreck their remaining claims to be a serious news network.
My guess (and it’s just a guess based on what I’ve read about Fox News and especially its news budget meetings) is test they’re not particularly worried about their on air personalities being deposed so much as they might be worried about things like emails or texts between Fox News producers etc and people like Rudi, the Kraken lady, and the Mypillow guy which imply or state that they all know the complaint about the election is false but is being propounded anyway. Or memos about budget meetings where there was an objection to running a story or a segment based on obvious falsity or (worse) admissions by principals but management orders the stories run anyway.
That’s what could sink them and that’s what I suspect is what Fox News’s lawyer are worried about.
May they employ a parallel to the Sidney Powell's defense:
We're not responsible for the hyperbolic political speech of our guests and hosts, and anyway, reasonable people would understand that this is purely for entertainment purposes only!
Vince Mc Mahon knows.