The judge in the Dominion lawsuit against Fox News has issued a summary judgment that Fox did, indeed, lie about Dominion's voting machines:
In his ruling, Davis determined that the conservative cable-news network had undeniably broadcast falsehoods when it allowed allies of Donald Trump to float baseless conspiracy theories about Dominion supposedly rigging voting machines to boost Joe Biden.
However, Davis said he will leave it to a jury to decide whether Fox knew the statements were false when they aired them or acted recklessly in doing so — the “actual malice” standard required to prove a case of defamation.
This means Dominion doesn't have to clutter up its case by convincing a jury that Fox lied. Nor that the lies defamed Dominion. Nor that Fox was "just reporting the news." The judge has already decided those questions.
All they have to do is show that Fox knew it was lying—which seems like something of a no-brainer to me. Still, Dominion has to prove it. Stay tuned.
The full ruling is here.
*OK, fine, what he said is that "there is no genuine issue of material fact as to falsity....[it] is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true" [italics, bolding, and caps in original]. But maybe none of the 115 statements at issue are lies. Maybe all the folks at Fox believed this stuff and it was just a big misunderstanding!
I am willing to go out on a limb and say that this is unlikely with extreme prejudice. But for legal reasons the judge himself didn't say it.
This distinction doesn't make sense to me. Lying is defined (more or less) as knowingly stating an untruth, or to make a false statement with the intent to deceive. In other words, knowing that the statement is false is already part of the meaning of lying. Stating an untruth UNknowkingly is just called "being wrong" or "making a mistake." So how does the judge distinguish lying from knowing that you're lying? What question is the jury actually going to answer?
Two defenses against defamation are that the statements were true (and therefore not defamatory) or merely opinion (and therefore protected by freedom of speech).
The judge ruled that the Fox statements were made as expressions of fact and not opinion. He also ruled that the statements were false (but did not rule that they were lies).
Yes, Fox's only defense remaining is that they didn't know that these statements were false when they made them. Dominion must prove Fox acted knowingly and with reckless disregard for the truth.
The very fact they broadcast them determined that they were reckless and knowingly did so. The production of TV, although easier than in the past, is still intensive and requires the coordination of multitudes. Along with their knowing consent. And if they had any evidence to the contrary that the stories were false it would be damning. So they won't produce it, if it existed. They'll just bite the bullet I think.
The very fact they broadcast them determined that they were reckless and knowingly did so.
How so? If you broadcast something you didn't realize was false, you're in the clear. I personally don't think for a second the broadcast team was unaware it was lying. But it's not up to me: a jury must be convinced of this.
We all know (and a judge has agreed) Fox reported falsehoods about Dominion on in broadast. What needs to be proved to a jury is that they knew the information was false.
My point is that such a large and expert operation as Fox is has the evidence that what they broadcast was known as false. They made editorial decisions to not broadcast those facts that would have killed the story. Or they were that inexpert that they fell for the same hoax that many Republican fell for with the Kitty Litter Kids story.
Proving it might be a challenge as you point out that seemingly everyone working at Fox lies and will do so on the stand.
My hope is that Dominion lawyers hammer away on 2 things:
1) Fox wasn't reporting the news, the actual news was that the allegations against Dominion were without substance. Fox never reported that.
2) Maria Bartiromo and Lou Dobbs made their careers as corporate flacks. They knew how to get a corporate executive or PR department on the telephone and didn't bother despite Dominion reaching out to them.
That said, no way Fox goes to trial. They agree to pay Dominion $250M or so and have Bartiromo retract.
By my read, the judge has not found lying, which requires intent by its definition, just falsehoods, and now the question is was it reckless, either by intent or lack of fact checking.
By my read, the judge has not found lying, which requires intent by its definition, just falsehoods
Yeah. I don't think Kevin's language is very precise here.
Just came here to post a similar comment. It would appear the judge has ruled Fox reported falsehoods, not that they were lying. This last part (that Fox knew it was repoting falsehoods) is what the jury must decide.
According to that chunk of the news report, the judge ruled that Fox had broadcast "falsehoods" / "false statements," not "lies."
According to the report, the judge is leaving it to the jury to determine if Fox knew that the falsehoods were false--i.e., to determine if the falsehoods were lies.
Seems more the case that falsehoods are firmly established, now the question is malice, which would be acting recklessly, which doesn't have to involve lying, but if the jury finds that the falsehoods were spread with intent, that basically is the definition of lying, and in this context reckless.
The jury can convict without finding lying, just as long as the actions were reckless, which could involve lack of and/or wanton disregard for fact checking, which makes the leaks about the CEO demanding fact checks stop because alienating the audience so damning.
This is not a free press case at all.
"...The judge has already decided those questions."
In theory maybe but in practice the jury can decide differently.
No, it can't, the questions won't even be put to the jury.
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Now Dominion needs to place this in the laps of those that need the most punishment. Who will Rupert choose as the lamb?
pain........
IMHO it will be Bartiromo, Dobbs and Pirro.
Hannity and Carlson are the main attraction(s)
what FOX did was DE-emphasize the difference between their NEWS shows and their OPINION shows people began assuming everything Fox did WAS NEWS. People will tend too belive what they want to believe.
I hope Fox is found liable as much as the next person. But I fear there's too much gleeful anticipation of what such a finding by the jury implies. It's been reported that the firm is only on the hook for a couple of billion dollars. Such an amount is very, very, very far from sinking this execrable oufit.
Are there other, potential implications? Like loss of broadcast licensure? I'm not aware of any. I suspect a "liable" verdict changes basically nothing.
Yeah. The primary result is going to be going to someone's office to bitch, like it was done back in the old days. Because Fox is going to turn into Russia, with a department to make sure that NOTHING is said in email or chat except business.
It's hard for me to imagine that anyone at Fox truly "knows" anything in the sense you are using.
Fox News will settle and they'll require the settlement to be confidential. Fox News will then use this as proof of victimization, but because Dominion was made whole by a record 9-figure settlement, it won't cause them to pursue this path again.
Dominion won't settle, it needs a verdict to resurrect its reputation.
Nothing will resurrect Dominion’s reputation. A jury verdict against Fox will just prove to Trumpians that the system is rigged. Trump said rigged voting machines were used to defeat him. Trump never lies. Dominion needs to get an amount of money that will compensate them for their lost business and will punish Fox to the extent that it will be more careful in spreading lies.
If Fox negotiates a settlement and wants it to be confidential then Dominion should ask for double the amount.
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Will the jury pool be told up front that Fox spouting falsehoods has already been settled? Some jurors may react negatively if they find out that they have to accept this as a matter of fact. Is it reasonable to find this out during jury selection?
If nothing else (and we have too often gotten "nothing else"), all the internal communications from Fox that discussed the outrageousness of the conspiracy theories, the knowledge that they were being lied to and disseminating lies, the backbiting and attacks on anybody who wanted to debunk the lies on air or give the actual truth... well, a lot of Americans now know.
Of course, the Fox viewers won't, because Fox and the more rightwing outlets of the fever swamp are all they listen to. Baby steps. At least we're going in the right direction. Doing nothing would be worse.