How Dominion defamation suit against Fox News will test a Delaware court
WASHINGTON — Five days after the 2020 presidential election, Sidney Powell, the fabulist lawyer, appeared on Maria Bartiromo’s Fox News show to say there has been “a massive and coordinated” effort to “delegitimize and destroy” Trump votes and “manufacture” Biden votes. Bartiromo asked her to elaborate. Powell obliged, talking about Dominion voting machines “flipping votes in the computer system or adding votes that did not exist.”
Four days later, Rudy Giuliani said on Fox Business’s Lou Dobbs program that the Dominion company’s owner was created “to fix elections” — to perform election fraud with sinister software. Dobbs: “It’s stunning.” And: “Rudy, we’re glad you’re on the case.” On Dec. 10, 2020, Powell said on Dobbs’s program that a “controller module” in Dominion machines allows people to “manipulate the vote,” enabling “Dominion executives” to “sell elections to the highest bidder.” Dobbs lamented this “broadly coordinated effort” to defeat Trump.
On Jan. 26, 2021, Mike Lindell, the pillow salesman and substantial advertiser on Fox News, said on Tucker Carlson’s program: “I have the evidence . . . I dare Dominion to sue me because then it will get out faster . . . they don’t want to talk about it.” Carlson: “No they don’t.”
Yes, they do. Come April, in the Superior Court of Delaware, the Dominion voting machine company will argue that it has suffered substantial injuries (it is seeking $1.6 billion in damages) because of defamatory statements about the 2020 presidential election that were made, repeatedly, on Fox News.
That the statements were false was obvious. That they were lies — known to be false by those who made them — cannot be reasonably doubted. Among the difficult questions, however, are: What did Fox News know and when did it know it? (The Wall Street Journal, which like Fox News ultimately answers to Rupert Murdoch, was dismissive of the election fraud claims.) How did Fox News on-air personnel behave when the lies were spoken on the air? Did behavior by people purporting to be journalists constitute complicity in the lying?
Dominion’s 139-page complaint alleges numerous examples, such as those above, of Fox News broadcasters being credulous when eliciting preposterous allegations from Donald Trump’s most unhinged devotees. The complaint says Fox “made,” “published,” “ratified,” “endorsed,” “adopted,” “amplified,” “promoted” and gave “a platform to” the lies. But those eight activities have different implications in litigation about defamatory journalism.
Dominion’s complaint argues that Fox News “gave life to” an election fraud story casting Dominion as “the villain.” Trump, enraged by Fox declaring Joe Biden the winner of Arizona and the presidency, successfully urged viewers to abandon Fox. To “lure viewers back” Fox News “endorsed, repeated, and broadcast” many “verifiably false yet devastating lies” about Dominion machines using “software and algorithms” to produce or erase votes, thereby assuring Biden’s victory. “Fox,” Dominion argues, “gave these fictions a prominence they otherwise would never have achieved.” It did this “because the lies were good for Fox’s business.”
Fox could argue, plausibly if uncomfortably, that some of its performers are entertainers lacking aptitudes, motives or incentives for making journalistic judgments about meretricious statements uttered on their programs. And that what might look like “reckless disregard” for the truth (a component of defamation) was merely indifference to it.
Was Fox malicious? Actual malice involves “knowledge that [a statement] was false” or “reckless disregard of whether it was false or not.” Fox could argue that its focus on Dominion was just show business — that Fox News performers were not preoccupied with accuracy. So, slovenly interviewing by Fox hosts pandering to fickle viewers could be presented as a defense against liability for defamation.
Dominion’s complaint alleges that repeated Fox appearances by Powell and Giuliani “gave Fox’s stamp of approval” to lies about Dominion. But the more Fox fanned the flames, the more it could say it was merely giving a platform to newsworthy arsonists.
In his essay “When Are Lies Constitutionally Protected?” UCLA law professor Eugene Volokh says the Supreme Court has upheld punishment for, inter alia, lies constituting defamation, libel, perjury, false statements to government investigators and fraudulent charitable fundraising. Dominion must establish legally cognizable harm from lies not merely reported by, but aggressively disseminated by, a media entity that prospered by encouraging the liars.
That some Fox News personalities (Jeanine Pirro: “Sidney Powell, good luck on your mission”) behaved abominably is indisputable, as is the fact that Dominion was severely injured. The Delaware court’s challenge will be to deliver justice for Dominion without having a chilling effect on journalism. Not that this profession was clearly involved in Fox’s role in the nation’s post-election embarrassment.