Murdoch isn’t sinking the Fox News legal case. Here’s why.
As news outlets have reported, Fox Corp. patriarch Rupert Murdoch admitted in a deposition that Fox News hosts “were endorsing” lies that the 2020 presidential election was stolen from President Donald Trump. “Not Fox,” Murdoch testified on the media outlet he founded. “But maybe Lou Dobbs, maybe Maria [Bartiromo], as commentators.” He conceded similar activity by host Jeanine Pirro and “a bit” by host Sean Hannity.
Murdoch’s comments are 1) true, as anyone who watched Fox News after the election can attest; 2) scandalous, considering that Murdoch could well have acted to stop them; and 3) likely to have a marginal impact on Dominion Voting Systems’ defamation lawsuit against Fox News.
U.S. defamation law requires a lot more than an embarrassing post hoc admission by a network mogul.
The lawsuit alleges that Fox News broadcast false claims that the voting tech company participated in widespread election fraud. The Murdoch statements are newsworthy and “atmospherically incredibly helpful” to Dominion, says Lee Levine, a retired media defense attorney.
But to prevail in court, Dominion needs to prove that Fox News proceeded with actual malice, meaning that Fox knew the falsity of statements it was broadcasting or made them with reckless disregard of their truth. And those requirements aren’t the only hurdles. Per the 1964 case New York Times v. Sullivan — which instituted the legal standard of “actual malice” — a plaintiff like Dominion must bring “home” the evidence, linking the required state of
mind to the people responsible for the challenged statements.
It’s an arduous legal undertaking. In a mid-February filing, Dominion devotes more than 70 pages to the considerations needed to establish actual malice. The argument includes breakout sections detailing the involvement of various executives — including Fox News Media CEO Suzanne Scott — in the network’s day-to-day operations, alongside their knowledge of the truth about the election-denial claims and the alleged involvement of Dominion. “Scott knew the statements Fox broadcast about Dominion were untrue, or recklessly disregarded the truth,” the filing says, noting that Scott received emails from Dominion setting the record straight.
A separate section explores the of role of executives and producers responsible for various Fox News programs, rummaging through their states of mind during allegedly defamatory broadcasts. Dominion cited the Nov. 15, 2020, broadcast of Bartiromo’s “Sunday Morning Futures,” which featured guest commentary by Trump legal advisers Rudy Giuliani and Sidney Powell, the duo that peddled so many election-fraud lies on the network. Since the material was pre-taped, the filing argues, Fox News executive David Clark could have edited the product to remove allegedly defamatory material. “He made no effort to remove the statements about Dominion he knew by then were false,” reads the complaint.
And to substantiate its claims about ambient corporate culpability, Dominion says that 19 of the 20 statements at issue in the case arose after Dominion alerted Fox News to their falsehood.
In its own filing Monday, Fox News argues that Dominion’s approach to imputing “actual malice” bears little relation to legal standards. “Dominion tries to distract from its evidentiary deficiencies by cherrypicking anything it can find from any corner of the Fox News organization that shows that anyone at Fox News doubted or disbelieved the President’s allegations,” reads the brief. “From there, it posits that ‘Fox’ writ large-not the specific person(s) at Fox News responsible for each statement-‘knew’ that that specific statement was false.”
To attack Dominion’s polemical sprawl, Fox News argues that the company tries to establish that 16 specific employees — including “Fox & Friends” host Steve Doocy, PR boss Irena Briganti and news correspondent Lucas Tomlinson — had skeptical views on the claims of election theft. “But when Dominion finally gets around to telling the Court who it thinks is responsible for the statements it has challenged, it does not identify any of those individuals as persons responsible for any of the statements,” reads the Fox News brief.
Is that enough “actual malice” minutiae?
Levine tells the Erik Wemple Blog that it’s “fair game” for Fox News to argue that executives’ state of mind is irrelevant if they weren’t personally involved in the allegedly defamatory broadcasts. At the same time, he says, “I can’t point you to a case that says that somebody like Murdoch or Scott who had the power to provide direction to the shows and did exercise it on occasion and were generally aware — that a court can’t reasonably hold that their state of mind is relevant.”
Proving who knew what when isn’t as juicy as, say, the text message from Fox News host Tucker Carlson advocating the dismissal of a colleague over solid reporting. Or the claim about Pirro’s mental health. But it’s the lifeblood of an actual malice claim and will shape what’s expected to be a five-week trial.