Did Fox News act with actual malice? Two episodes highlight the legal peril.

There is no question that Dominion Voting Systems’ defamation lawsuit against Fox News has embarrassed the network.

It has revealed that Fox hosts and executives privately derided the 2020 stolen-election claims, even as Fox credulously aired them in an effort to secure viewers. More recently, we’ve discovered that both Rupert Murdoch and Tucker Carlson also privately derided Donald Trump as it was all going down. They wished he would go away, and Carlson even called Trump’s four years as president a “disaster.”

Reputational harm is surely a direct consequence of Fox’s shoddy editorial decisions having paved the way for the lawsuit to get this far.

But what matters legally speaking is whether Dominion can prove Fox meets the standard for defamation. And it’s worth combing through the evidence on that thus far.

The defamation standard in cases involving the media is “actual malice.” That standard was set by the 1964 Supreme Court case New York Times v. Sullivan. It requires proving that false information was aired either “with knowledge that it was false or with reckless disregard of whether it was false or not.” It’s a very high standard.

So Dominion can’t just prove Fox aired false claims about Dominion; it must prove that it did so either knowingly, with a high degree of awareness that it was probably false, or while entertaining serious doubts about it. (“Actual malice,” despite the ominous sound of the phrase, does not require literal ill will.)

Dominion’s argument, as initially laid out in a brief last month, is that too many people at Fox broadly understood the stolen-election narrative to be bogus. In its telling, that means airing this specific stolen-election claim — that voting machines rigged the election — demonstrated “Fox’s knowledge of falsity, not just doubts.”

Fox has accused Dominion of taking its employees’ words out of context. And this week it pointed to real-time emails from host Maria Bartiromo — a key promoter of the false claims about a rigged election — to a Dominion spokesman. In them, Bartiromo said she wasn’t “sure what to think” of the claims. Fox suggests that the emails show that key players weren’t so convinced that these specific claims were untrue and conducted due diligence. It also says these were newsworthy people making newsworthy comments.

It’s also worth noting that Fox’s opinion hosts generally did less to personally endorse the claims than their guests did. And Fox will apparently argue that those specific hosts — Bartiromo, Lou Dobbs and Jeanine Pirro are especially key — either sincerely believed or at least sincerely entertained the theories.

But Dominion counters by arguing that even that needn’t be proved. It cites a 2002 appeals court case, Solano v. Playgirl. In that case, the court said the actual malice standard could be satisfied even if the employees who raised concerns weren’t “the final decisionmakers as to the content.”

In that opinion, though, the court did cite that those final decision-makers were “aware of some staffers’ concerns.”

As for evidence that specific situations in the Fox-dominion case might meet such a standard — key players actually being provably aware of such concerns? — a couple of examples are worth diving into.

One involves Dobbs, and another, Tucker Carlson.

On Nov. 27, 2020, Dobbs producer John Fawcett texted Dobbs. He asked whether the then-fox Business host had read Sidney Powell’s lawsuit — apparently referring to voting machine-related lawsuits filed in Georgia and Michigan.

“Yep whadya think?” Dobbs asked.

“It’s complete bs,” Fawcett told Dobbs.

Fawcett derided Powell for citing Project Veritas’s James O’keefe and added, “I can’t believe that was the kraken.” (Powell often invoked the idea that she would unleash the “Kraken” through her litigation.)

No response from Dobbs is shown in the exhibit. But Powell, who had previously appeared on his show, appeared again Nov. 30 and Dec. 10.

In the former appearance, three days after Fawcett’s text, Powell stated that voting machines in Georgia were “infected with the software code that allows Dominion to shave votes for one candidate and give them to another.” Dobbs did not push back. In fact, he expressed grave concerns about the machines, saying, “This thing should be shut down right now, and people understand that this will not be tolerated by the American people.”

Before interviewing Powell on Dec. 10, Dobbs called Powell’s allegations a “Kraken thunderbolt” and invoked a “Cyber Pearl Harbor.” He at one point asked what evidence Powell had for her voting machine claims, but he clearly played into them, citing “a very large foreign intrusion and interference in the election of 2020.”

In a brief, Fox has said Fawcett’s texts to Dobbs “do not establish clear and convincing evidence that Fawcett knew the claims against Dominion were false or harbored serious doubts about the truth.”

“At most,” the brief said, “the statements demonstrate Fawcett’s belief that Powell had still at the time failed to present evidence to prove her claims in court.”

Dominion said in a new brief Wednesday that Fox’s argument “defies explanation.”

The Carlson example dates back a little earlier.

On Nov. 17, Carlson texted Powell, “You keep telling our viewers that millions of votes were changed by the software. … If you don’t have conclusive evidence of fraud at that scale, it’s a cruel and reckless thing to keep saying.” He also described Powell’s theory as “shockingly reckless” in a Nov. 21 text to someone else.

It’s worth emphasizing that, in between those texts, Carlson was actually the rare Fox host to voice skepticism about Powell’s claims. On Nov. 19, he ran a lengthy segment echoing his private comments about her lack of any real evidence. He called her claims “serious” but said she “never demonstrated that a single actual vote was moved illegitimately by software from one candidate to another. Not one.” He said she declined to provide him such evidence.

But Carlson later welcomed Mypillow CEO Mike Lindell on his show, on Jan. 26, 2021. And Lindell proceeded to broach the same theory.

“I’ve been all in trying to find the machine fraud, and we found it,” Lindell said. He also directly dared Dominion: “I have the evidence. … I dare Dominion, just sue me because then it would get out faster.”

In his deposition, Carlson acknowledged he didn’t press Lindell for evidence. He cited time constraints and a desire not to belabor the discussion of voting machines. He said that he regarded it as “off-topic” and that he worried it could veer into “possibly reckless” territory.

Fox said in its brief that “the two statements made by Lindell that even mention Dominion were Lindell’s, and Lindell’s alone.” It also cited Carlson responding to Lindell on the show by saying, “They are not making conspiracy theories go away by doing that.” It cast that as Carlson having “openly denigrated” Lindell’s claim in real time.

Notably, in his deposition, Carlson also said, “As far as I know, Mike Lindell makes that same claim every single day of the year on his website and any interview that he does.” Dominion could use that to argue that Carlson was thus well aware that interviewing Lindell would involve airing false claims about Dominion.

(A week later, a Newsmax host awkwardly tried to cut off Lindell when Lindell waded into his Dominion theories. When Lindell wouldn’t cease, the host walked off the set.)

Interestingly, long before we even learned, recently, about what Fox employees were saying privately, a judge held up Carlson’s Powell segment as evidence that others at Fox might have acted with actual malice.

This involves another lawsuit, brought by a voting software company, Smartmatic. In that case, a judge ruled that Carlson’s Powell segment suggested “that Fox News knew, or should have known, that Powell’s claim was false, and purposefully ignored the efforts of its most prominent anchor to obtain substantiation of claims of wrongdoing by” Smartmatic.

Also interestingly, a newly released exhibit shows that the two examples mentioned above collided. On Nov. 20, Fawcett texted Dobbs a link to a Daily Wire story about Carlson’s Powell segment. It was titled, “Tucker Carlson Unloads On Trump Lawyer Sidney Powell Over Wild Election Claims: The Truth Matters.”

So it wasn’t just Fawcett’s Nov. 27 text bringing to Dobbs’s attention concerns about Powell’s claims before Dobbs welcomed her on-air to promote them.

The further evidence revealed in the Dominion case indicates that Carlson was hardly the only one who disbelieved such theories. It was a widely held view in the company, as was the view that Powell wasn’t a credible or serious messenger. She continued to be afforded a platform despite that, and now it’s up to the courts to decide whether all of it proves Fox acted with actual malice.