The cascade of errors and lies that put Fox in legal jeopardy
The central problem with Donald Trump’s effort to pretend he didn’t lose the 2020 US presidential election was that it depended on the nonsensical idea that myriad officials in numerous states conspired in similar ways to deny him a victory.
He at first alleged a sweeping conspiracy involving hundreds of people and hundreds of thousands of votes, for which no evidence existed. But then a new idea arose: Maybe it was electronic voting machines, like those made by Dominion Voting Systems, that had somehow thrown the election?
There was no evidence for this either, but the baseless claims about Dominion quickly took root – and, to this day, thrive.
Dominion pushed back by filing defamation lawsuits against those propagating the allegation. Among the targets was the Fox Corporation and Fox News, where both hosts and guests had elevated the baseless claims to viewers.
Because of the protections offered by the First Amendment to the US Constitution, there is a high bar for suing a media organisation for defamation.
But in a blockbuster legal filing made public on Friday, lawyers for Dominion presented wide-ranging evidence that Fox executives and presenters should have known – or, at times, explicitly knew – that claims being made about the voting machine company were false, but pressed forward in making them anyway.
If Dominion’s lawsuit is successful, it could severely damage Fox.
But this wasn’t simply a oneoff error by Fox. Instead, it was the result of a cascade of bad decisions and wilful choices, often centred not on presenting accurate information to its audience but instead on ensuring that its audience stuck around.
There would be no appetite for Trump’s false claims about election
fraud had they not been given oxygen for months before the election. Over and over, it was pointed out that the assertions were meritless, and were clearly motivated by Trump hoping to undermine a likely defeat. But Fox News rarely held Trump or his claims up to significant scrutiny.
‘‘They, you know, by and large, didn’t get tough with us,’’ Trump’s former press secretary Stephanie Grisham said of the network in 2021. ‘‘They just took what we were saying and disseminated it.’’
This was clearly because Fox News understood that Trump supporters were a central part of its audience. Presenters like Shep Smith, who challenged the prime time opinion hosts’ presentations of Trump, found remaining at the network untenable.
There was a danger to the network in all of this. As Peter Baker and Susan Glasser wrote in their 2022 book The Divider: ‘‘What [Fox News founder Roger] Ailes saw in Trump that he did not see
in any other Republican politician of recent years was someone who connected with the Fox audience even more than Fox did.’’ This meant unusual deference to Trump, so as not to alienate viewers.
It’s ironic that a key part of Fox News’s cascade toward creating space for the Dominion claims was a brash prediction that ended up being correct.
The network was the first to call Arizona for Joe Biden on the night of the election, nearly completely closing the door on Trump’s path to re-election. The call sparked a widespread outcry within the White House, and people connected to the Administration contacted Fox to complain.
The early call was pilloried by Fox News’s audience. The network’s right-wing competitors amplified the criticism.
From election night on, Fox News suddenly found itself playing defence against its proTrump base. This created space for competitors, most notably
Newsmax, a network willing to explicitly and repeatedly hype Trump’s false fraud argument.
Inside Fox, this threat was clearly recognised, according to the documents obtained by Dominion.
Writing to an outside individual in a message obtained by Dominion lawyers, Fox News presenter and former White House press secretary Dana Perino noted the ‘‘RAGING issue about fox losing tons of viewers and many watching – get this – newsmax! Our viewers are so mad about the election calls.
‘‘[T]his day of reckoning was going to come at some point,’’ she added, ‘‘where the embrace of Trump became an albatross we can’t shake right away if ever.’’
Even Fox Corporation chairman Rupert Murdoch weighed in. ‘‘These people should be watched, if sceptically,’’ he said of Newsmax. ‘‘Everything at stake here.’’
Staff on both Fox News and Fox Business fell into several categories.
There were those hewing to reality, like host Neil Cavuto, who cut away from a White House news conference including false claims about fraud. This prompted some internal consternation, with executive Raj Shah, a former member of Trump’s communications team, warning about the threat to the Fox brand, according to messages mentioned in the Dominion filing. There were those who downplayed the claims about fraud, like Tucker Carlson – one of the first people to publicly call out Trump lawyer Sidney Powell’s lack of evidence for her wild claims about Dominion. However, according to messages obtained by the company, Carlson’s private excoriations were much more critical than his on-air ones.
There were those who rejected the claims in private but created space for them publicly. Sean Hannity claimed in a deposition that he ‘‘did not believe [Powell’s claims] for one second’’ – but he nonetheless hosted her and allowed her to share her claims, even after Carlson called her out.
Then there were those who appear as though they may have actually believed the nonsensical allegations – or, at least, offered few qualms. The Dominion filing names host Maria Bartiromo as particularly important in having elevated Powell’s claims. At the end of November 2020, she hosted Trump for a lengthy conversation in which he presented unfounded claims of fraud without any pushback.
Hannity was an overt supporter of Trump – at one point shortly after the election, a Fox executive worried about his interest in touting Trump’s allegations, according to messages obtained by Dominion. ‘‘I think Sean will see the wisdom of this track eventually, but even this morning he was still looking for examples of fraud.’’