The Washington Post
Fox’s risky defense manuever
Media company’s legal strategy appears to rest on conspiratorial themes
Facing a billion-dollar lawsuit over its airing of conspiracy theories that a voting machine company helped rig the 2020 presidential election, Fox News is trying to argue that the false claims were not so wildly improbable.
As is typical for defendants in defamation suits, the network has invoked its First Amendment rights to share its newsgathering activities, saying it merely reported on fraud allegations raised by Donald Trump and his allies rather than endorsed them.
Yet a key part of Fox’s defense strategy appears to rest on many of the conspiratorial themes that prompted the lawsuit in the first place and that now pepper its recent court filings: alleged links to late Venezuelan socialist leader Hugo Chávez, an ominous affidavit from a supposed “former military intelligence officer,” claims of “glitches” in voting machines.
It’s a risky strategy but possibly a necessary one, legal experts say, as Fox will need to make the case that its commentators did not intentionally defame the election
technology company, Dominion Voting Systems.
“In almost every case, a media defendant will argue that the reporter thought the information was true based on what was known at the time,” said Lyrissa Lidsky, a constitutional law professor at the University of Florida. But, she added, “there is a danger in this strategy if it seems as if the defendant is doubling down on insisting that something is now true that the evidence conclusively indicates is false.”
Erin Murphy, an attorney representing Fox News in the Dominion case, described the references to conspiracy theories that percolated in the wake of the election as a secondary defense should Fox’s First Amendment claims fail — as many legal observers have predicted they will.
“It’s not an effort to prove that the ultimate allegations they were talking about are true,” Murphy said. “It’s more that it goes directly to that question of putting yourself in the state of mind of people who are hearing these allegations in early November 2020.”
The legal strategy speaks to the high bar plaintiffs face in defamation cases. To win, Dominion must prove Fox acted with “malice” — not only that network personnel shared false information but also that they knew it to be false or ignored serious doubts that it was true.
Dominion has indicated that it’s prepared to make exactly that argument. In a recent set of briefs filed in Delaware Superior Court, Dominion presented emails and text messages from Fox executives and hosts expressing their concern over on-air statements by Trump lawyers Sidney Powell and Rudy Giuliani.
But Fox has argued in its own briefs that although some executives and producers may have been skeptical of these claims, its commentators — including Jeanine Pirro and Maria Bartiromo — might reasonably have believed that the Trump claims of election fraud were true.
“Just as Fox News hosts did not take the President’s claims at face value, they did not take Dominion’s denials at face value either,” attorneys for Fox wrote.
Dominion has said that it sent 3,682 emails to Fox to challenge its on-air claims.
In their filings, Fox’s attorneys emphasize that electronic voting machines are hackable and have long been controversial for that reason. The network cited internal Dominion documents obtained in discovery to allege that the company’s “own employees expressed serious concerns about the security of its machines” and “suffered several potential glitches in the November 2020 election.”
Since emerging in a Fox court filing, those talking points have been picked up by far-right sites that still promote conspiracy theories about the election. Gateway Pundit headlined it as: “HUGE: FOX News Filing Shows DOMINION Voting Systems Executives … Knew Its Voting Systems Had Major Security Issues.”
Murphy, the Fox attorney, said Dominion’s internal communications show “the reality that there’s a lot of concern out there about the possibility of tampering.” The vulnerability of those machines, she said, is “a huge part of the case, and it’s a huge problem for [Dominion] that they’re saying no one in the world could believe this stuff.”
In its own filing, Dominion said it “did not sue Fox for broadcasting discussions of potential ‘ vulnerabilities,’” or for claiming that electronic voting machines “could theoretically be hacked” — but because Fox hosts allowed Powell and Giuliani to spread the falsehood that Dominion was a Venezuelan company created to rig elections for Chávez and was doing the same for Joe Biden.
Fox has tried to resurrect some of those claims as well. In its recent filings, the network emphasized that Dominion had a past relationship with rival Smartmatic, which had been criticized for its work in Venezuela.
Smartmatic, which is also suing Fox News, says it stopped doing work in Venezuela after identifying potential fraud. For two years, Smartmatic owned another company that was later bought by Dominion; a decade ago, Smartmatic and Dominion had a licensing agreement that quickly fell apart.
Fox attorneys also summarize lawsuits filed by Powell challenging the election results, in which she alleged that a “former military intelligence officer” claimed that foreign agents had hacked Dominion’s software to “monitor and manipulate” the 2020 election. This appears to be a reference to a baseless declaration made by an information technology analyst — referred to by Powell in her litigation by the code name “Spider” — who it turned out had only enrolled in but never completed an entry-level intelligence training program while serving in the Army.
The brief also catalogues issues or alleged issues on Election Day with Dominion voting machines in Arizona, Michigan and Georgia — without explaining that all of those issues were resolved within days and that none involved the possibility of votes changing from one candidate to another.
Law enforcement agencies began hunting for voter fraud immediately after the election but by late December found only a handful of isolated cases. More than 90 percent of votes came with paper records that were used to confirm the electronic results.
But Fox News argues that “even assuming that the individuals at Fox News responsible for the publications knew about the audits at the time, those self-serving audits did not debunk the President’s claims in any ‘objectively verifiable’ way.”
Fox’s briefs also note that cybersecurity experts have expressed concern about voting machines used in Georgia, which don’t have backup paper ballots. But those same experts have emphasized that the possibility of hacking is very different from evidence of hacking; Georgia officials repeatedly affirmed that they tested the machines before the election and audited the results afterward.
Lee Levine, a longtime media lawyer, said Fox’s argument that the fraud claims were plausible at the time might justify some of its initial reports, but it “becomes harder and harder to make the deeper and deeper you get into the calendar,” after the Trump team’s efforts to litigate those claims had largely been rejected by the courts. Dominion’s suit covers broadcasts from November 2020 through January 2021.
He noted that Fox wasn’t required to “take what Dominion says at face value.” But once Dominion had provided information to counter their initial reports, he said, “Fox’s alleged failure to do anything further with respect to putting Powell and Giuliani on the air amounts to what law calls a deliberate avoidance of the truth.”
Regardless of the evidence available, Fox has also argued that Dominion cannot prove actual malice, because these individual hosts were, at the very least, open to the fraud claims at the time. And some of them, the company’s attorneys said, either still believe or are unsure whether the election was stolen.
David Schulz, who runs the Media Freedom and Information Access Clinic at Yale Law School, said Fox is correct that the actual malice standard is tied to the speaker’s state of mind — but with limits.
Fox is “essentially saying that you have a defense of ‘not guilty by reason of insanity’ in a libel case,” Schulz said. “That can’t be right.”
“It’s not an effort to prove that the ultimate allegations they were talking about are true.” Erin Murphy, an attorney representing fox news