Dominion’s latest filing also described how Paul Ryan, a former Republican speaker of the House and current member of the Fox Corp. board of directors, said in his deposition that he had told Murdoch and Murdoch’s son Lachlan, the CEO, “Fox News should not be spreading conspiracy theories.” Ryan suggested that the network pivot and “move on from Donald Trump and stop spouting election lies.”
The filing casts Rupert Murdoch as a chair who was both deeply engaged with his senior leadership about coverage of the election and operating at somewhat of a remove, unwilling to interfere. Asked by Dominion’s lawyer, Justin Nelson, whether he could have ordered Fox News to keep Trump lawyers like Sidney Powell and Rudy Giuliani off the air, Murdoch responded: “I could have. But I didn’t.”
The filing helps fill in the broader case against Fox News and its corporate parent, Fox Corp., that Dominion lawyers hope to present to a jury in April, when a Delaware judge has scheduled the trial to begin.
A Fox News spokesperson said Monday in response to the filing that Dominion’s view of defamation law took “an extreme, unsupported view of defamation law that would prevent journalists from basic reporting.”
Since Dominion sued in early 2021, it has argued that Fox chose ratings and profit over its journalistic obligation to tell viewers the truth.
Using text messages and emails sent by Fox employees and prominent hosts like Hannity and Tucker Carlson in the weeks after the election, Dominion has pieced together a dramatic account from inside the network, depicting a frantic scramble to woo back viewers after ratings collapsed.
On election night, Fox News was the first news outlet to declare Joe Biden the winner of Arizona — effectively projecting that he would become the next president. With Trump refusing to concede that he had lost, he and his supporters turned against Fox, and the network’s ratings fell. Soon, many of the most popular hosts and shows on Fox began promoting the outlandish claims that Dominion machines were an integral part of a far-reaching voter fraud conspiracy to deny Trump a second term.
The filing Monday also included a deposition by Viet Dinh, Fox’s chief legal officer. After Hannity told his audience on November 5, 2020, that it would be “impossible to ever know the true, fair, accurate election results,” Dinh said, he remarked to Lachlan Murdoch; the CEO of Fox News Media, Suzanne Scott; and Fox’s top communications officer, Irena Briganti: “Hannity is getting awfully close to the line with his commentary and guests tonight.”
In his deposition, Dinh, when asked if Fox executives had an obligation to stop hosts of shows from broadcasting lies, said: “Yes, to prevent and correct known falsehoods.”
Lawyers for Fox, which filed its response to Dominion in court Monday, have argued that its broadcasts after the election did not amount to defamation because they were protected under the First Amendment. In court filings, Fox has defended its commentary and reporting as the kind of work that any journalistic outfit would do by covering events and newsmakers that are indisputably newsworthy.
“A reasonable viewer would have readily understood that hosts were not espousing the President’s allegations themselves, but were providing a forum for the principal architects of those legal challenges,” Fox lawyers said in a brief filed this month.
If its broadcasts did not present any of the fraud allegations as true, the network has argued, “there is no potential for defamation at all.”
Ultimately, the case is likely to revolve around questions about the intent of Fox hosts when they gave pro-Trump election deniers like Powell and Giuliani a platform and, in many cases, mustered no pushback as their guests falsely and repeatedly implicated Dominion in a plot to disenfranchise tens of millions of Trump voters.
Fox lawyers have pointed to instances on the air when hosts did challenge these claims and pressed Powell and Giuliani to present evidence that never materialized. At other times, Fox has argued, the hosts were plainly expressing their opinions, or used language that was “loose” and “figurative” and therefore protected under the First Amendment.
But Dominion has said the actions of Fox hosts including Carlson, Hannity, Bartiromo and Dobbs — and the producers and executives overseeing their programs — were anything but a dispassionate recitation of newsworthy claims of fraud. Rather, Dominion has argued, the internal communications it has uncovered point to how Fox employees behaved with “actual malice” — the legal standard required to prove defamation.
There are two ways to meet that high legal bar, by showing that defendants either knew what they were saying was false or acted with such haste and disregard for the truth that they overlooked obvious facts to the contrary.
In a brief filed in court this month, Dominion lawyers revealed private text messages and emails that showed hosts including Carlson repeatedly insulting and mocking Trump advisers like Powell.
“Sidney Powell is lying by the way. I caught her. It’s insane,” Carlson wrote November 18, 2020, to Laura Ingraham, who hosts the prime-time Fox News show that airs after his.
Ingraham responded: “Sidney is a complete nut. No one will work with her. Ditto with Rudy.”
Carlson continued, “Our viewers are good people and they believe it,” making it clear that he did not.
This article originally appeared in The New York Times.
Written by: Jeremy W. Peters and Katie Robertson
©2023 THE NEW YORK TIMES
