What is Fox News hiding?
AFeb. 16 filing by Dominion Voting Systems in its defamation lawsuit in Delaware against Fox News has kicked up a media firestorm: Outlet after outlet described how internal email and text messages quoted in the document, a filing for summary judgment, showed that network honchos knew former president Donald Trump’s election-theft claims were lies and allowed them to air anyhow.
Yet the filing is filled with frustrating dead ends, the result of the network’s aggressive effort to prevent disclosure of many of the internal communications that came out of discovery in the case. The black passages in the document raise the questions: What is Fox News hiding? Will those passages ever be unredacted?
As the Dominion filing makes clear, Fox News executives panicked in the weeks after the November 2020 presidential election. The network had called Arizona on election night for Democratic candidate Joe Biden, a move regarded as treason by the network’s MAGA crowd, which declared viewers would flee to the competition, especially conservative cable news outlet Newsmax.
So Fox News tried playing both sides—a little conspiracy-mongering here, a little factual injection there. Anything to hang on to its ratings pre-eminence.
One way the network competed with Newsmax was to host election-denying attorney Sidney Powell and her extravagant claims. Fox News CEO Suzanne Scott, who appeared multiple times in the Dominion filing, apparently commented on the situation, though the public for now doesn’t have the goods. Her Dec. 2 email, after Fox host Eric Shawn fact-checked Sean Hannity’s claims of election fraud, has been redacted in a February filing by Dominion.
Impenetrable black expanses in the filing thwart a complete understanding of what was happening as Fox News faced down a ratings collapse. We do know what happened when White House correspondent Jacqui Heinrich factchecked a stolen election claim made by Trump: Host Tucker Carlson advocated for her firing.
Similar tensions arose when anchor Neil Cavuto cut away from a news conference at which Kayleigh McEnany, the White House press secretary, was inveighing against the election. “Whoa, whoa, whoa,” Cavuto said on air. “She’s charging the other side as welcoming fraud and welcoming illegal voting. Unless she has more details to back that up, I can’t in good countenance continue showing you this.”
At an actual news organization, that sort of quick thinking results in laudatory emails from the bosses. At Fox News, it set off more panic. And in the Dominion filing? Another redaction of Scott.
All told, there are about 35 redacted passages in the opening narrative of Dominion’s Feb. 16 filing, a collection of anecdotes that launched a frenzy of negative press for Fox News. Though the redactions are in Dominion’s filing, they are a result of confidentiality designations made by lawyers for Fox News, according to a Dominion filing.
Both parties are working under an order allowing them to protect certain discovery materials— sensitive, proprietary, commercially sensitive information—from unrestricted public release.
Pressure is mounting for the redacted information to be revealed.
Neither party can get away with willy-nilly redactions just for the sake of avoiding public embarrassment. Civil litigants in Delaware, as elsewhere, are subject to a presumption that anything they say in court filings are public.
There is an exception for materials designated as confidential, but only for “good cause”— which Delaware courts have said is limited to trade secrets, “third-party confidential material” and “nonpublic financial information.
In a Feb. 17 filing, Dominion itself challenged the confidential treatment of material in three recent briefs by itself, Fox News and Fox Corp. “All the redactions across all three briefs are there at the Fox Defendants’ request,” the document notes.
A Fox News source, on the other hand, told The Washington Post that the redactions are consistent with the law and that the grounds for them include protecting reporter’s privilege.
Fox News didn’t respond to a question about why a media organization would insist on secrecy in a public court case.