Defamation suit on election falsehoods puts Fox on heels

Dominion Voting Systems takes aim at unfounded accusations

NEW YORK » In the weeks after former President Donald Trump lost the 2020 election, Fox Business host Lou Dobbs claimed to have “tremendous evidence” that voter fraud was to blame. That evidence never emerged, but a new culprit in a supposed scheme to rig the election did: Dominion Voting Systems, a maker of election technology whose algorithms, Dobbs said, “were designed to be inaccurate.”

Maria Bartiromo, another host on the network, falsely stated that “Nancy Pelosi has an interest in this company.” Jeanine Pirro, a Fox News personality, speculated that “technical glitches” in Dominion’s software “could have affected thousands of absentee mail-in ballots.”

Those unfounded accusations are now among the dozens cited in Dominion’s defamation lawsuit against Fox Corp., which alleges that Fox repeatedly aired false, far-fetched and exaggerated allegations about Dominion and its purported role in a plot to steal votes from Trump.

Those bogus assertions — made day after day, including allegations that Dominion was a front for the communist government in Venezuela and that its voting machines could switch votes from one candidate to another — are at the center of the libel suit.

First Amendment scholars say the case is a rarity in libel law. Defamation claims typically involve a single disputed statement. But Dominion’s complaint is replete with example after example of false statements, many of them made after the facts were widely known. And such suits are often quickly dismissed, because of the First Amendment’s broad free speech protections and the highpowered lawyers available to a major media company like Fox. If they do go forward, they are usually settled out of court.

But Dominion’s $1.6 billion case against Fox has been steadily progressing in Delaware state court this summer, inching ever closer to trial.

These people said they expected Rupert and Lachlan Murdoch, who own and control Fox Corp., to sit for depositions as soon as this month.

Verdict may resonate

The case threatens a huge financial and reputational blow to Fox, by far the most powerful conservative media company in the country. But legal scholars say it also has the potential to deliver a powerful verdict on the kind of pervasive and pernicious falsehoods — and the people who spread them — that are undermining the country’s faith in democracy.

“We’re litigating history, in a way: What is historical truth?” said Lee Levine, a noted First Amendment lawyer who has argued several major media defamation cases. “Here, you’re taking very recent current events and going through a process which, at the end, is potentially going to declare what the correct version of history is.”

The case has caused palpable unease at the Fox News Channel, said several people there, who would speak only anonymously. Anchors and executives have been preparing for depositions and have been forced to hand over months of private emails and text messages to Dominion, which is hoping to prove that network employees knew that wild accusations of ballot rigging in the 2020 election were false. Hosts Steve Doocy, Dana Perino and Shepard Smith are among the current and former Fox personalities who either have been deposed or will be this month.

Dominion is trying to build a case that aims straight at the top of the Fox media empire and the Murdochs. In court filings and depositions, Dominion lawyers have laid out how they plan to show that senior Fox executives hatched a plan after the election to lure back viewers who had switched to rival hard-right networks, which were initially more sympathetic than Fox was to Trump’s voter fraud claims.

Fox defense

Libel law does not protect lies. But it does leave room for the media to cover newsworthy figures who tell them. And Fox is arguing, in part, that is what shields it from liability. Asked about Dominion’s strategy to place the Murdochs front and center in the case, a Fox Corp. spokesperson said it would be a “fruitless fishing expedition.”

A spokesperson for Fox News said it was “ridiculous” to claim, as Dominion does in the suit, that the network was chasing viewers from the far-right fringe.

Fox is expected to dispute Dominion’s estimated self-valuation of $1 billion and argue that $1.6 billion is an excessively high amount for damages, as it has in a similar defamation case filed by another voting machine company, Smartmatic.

A spokesperson for Dominion declined to comment.