It is simply not accurate to present this as a lawsuit in which Fox did nothing more than report on what the president’s lawyers were arguing.
I recently took a long look at the damning evidence presented by Dominion Voting Systems in its defamation suit against Fox News. Over at the Federalist, Eddie Scarry argues that the lawsuit shouldn’t be treated as a real problem for Fox:
The private communications do demonstrate that hosts such as Tucker Carlson, Sean Hannity, and Laura Ingraham privately rejected the allegations put forth by some on Trump’s legal team that Dominion machines were compromised and delivered a false victory to Joe Biden. But interestingly enough, there is nothing documented about those people at Fox or anyone else at Fox asserting on air that the claims related to Dominion were true. Some hosts did air segments featuring interviews with Trump advisers who repeated those claims and acknowledged the allegations as having been made public, either in the media or in legal documents. But there are no instances of Fox hosts, producers, or reporters on air attesting to the credibility of the accusations . . .
It’s not a “lie” to cite allegations made by a sitting president’s lawyers or campaign officials…they let their audiences know about real-life events, which, believe it or not, don’t always require a “FACT CHECK: YOU’RE WRONG, MR. PRESIDENT!” . . . [Jeannine] Pirro told her audience what Trump’s lawyers said. It’s not a crime to describe what’s happening in the world . . . I have no idea if any Fox hosts said the election was stolen. But that’s not the same thing as explicitly stating by name that Dominion was responsible for the heist. (Emphasis added).
There are two primary problems with Scarry’s argument. The first is that he’s not accurately representing the state of the law. The second and more glaring problem is that he is misleading his readers about the facts of the case.
Begin with the law. Defamation suits are a creation of state law. Under the law of New York (which governs this case), the plaintiff has to show that the statement was false, that it was defamatory (harmful to the defendant’s reputation), and that the defendant published it. It is no defense to a defamation suit that a newspaper or TV station published a statement made by somebody else — they gave them the platform. (Websites have that privilege under Section 230 of the Communications Decency Act; cable TV networks do not.) In this case, there is no dispute that Fox put these statements on the air, there is no real effort by Fox to dispute that the theories about Dominion were false, and it is obviously defamatory to charge a voting-machine company whose entire business is fair counting of votes with tampering with those votes and paying kickbacks to get contracts. In terms of the basic legal elements, this is about as close as you will ever see to a slam-dunk defamation case.
Scarry also claims that Dominion should have no legal damages because the controversy was short-lived: “Sinister theories about Dominion . . . lasted for about two seconds in the months-long debate over the election.” At most, that argues for limiting the amount of damages, and it ignores the evidence in the case of actual harm to Dominion’s business and reputation with people who run elections using its machines.
The Supreme Court has placed some First Amendment limits on defamation suits, most prominently the New York Times v. Sullivan standard under which a public figure can successfully sue for defamation only by showing “actual malice” — i.e., that the defendant knew the statements were false. When the defendant is a corporation, the Sullivan rule is that “the state of mind required for actual malice would have to be brought home to the persons in the Times’ organization having responsibility for the publication of the advertisement.” Here, there is extensive and damning evidence that Fox hosts and producers and senior managers responsible for these shows and segments were aware that conspiracy theories about Dominion were airing on the network, and were false.
Where the law gets more complicated is the question of a legal privilege for publishing a defamatory statement if a news organization is just reporting someone else’s allegations. Some courts have recognized a “neutral reportage” privilege, and the law in this area is not entirely settled. News organizations are on their legally strongest ground if allegations are made in a court filing or testimony — or a verdict is reported — and the news just reports what is alleged or said in court. This is why you always hear the news refer to someone as an “alleged murderer” until they can be referred to as a “convicted murderer,” but never just a “murderer.” New York has a statute, Civil Rights Law section 74, that protects “a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding” from civil lawsuits.
Fox, however, has three problems with a defense of this nature. First, it aired segments with Trump’s lawyers and flacks making these allegations outside of a court proceeding, rather than just reporting what the filings said — in fact, in a number of cases it reported charges that were made before any lawsuit was filed, which makes an important legal difference. Second, it aired these interviews on opinion programs, rather than just having them treated as neutral straight-news reports, and as I’ll discuss below, its hosts did a lot more than just report the existence of these theories. Third, as the judge in the case found in rejecting the “neutral reportage” defense, it does not appear that New York courts even recognize the neutral-reportage doctrine outside of Civil Rights Law section 74. Scarry may believe that the law should be more protective of this kind of programming about ongoing controversies, but that is not where the law is now.
More fundamentally, Scarry is just wrong about the facts in the lawsuit. I already detailed in my prior column how Tucker Carlson framed Mike Lindell’s charges against Dominion in a way that suggested to his viewers that he was endorsing them — in late January 2021. A number of the other examples cited in the complaint and at issue in the lawsuit are considerably more egregious, especially those involving Lou Dobbs. On November 12, 2020, Dobbs let Rudy Giuliani rant about Dominion’s supposed ownership ties to Venezuela and Hugo Chavez, and Dobbs concluded:
It’s stunning. And they’re private firms and very little is known about their ownership, beyond what you’re saying about Dominion. It’s very difficult to get a handle on just who owns what and how they’re being operated. And by the way, the states, as you well know now, they have no ability to audit meaningfully the votes that are cast because the servers are somewhere else and are considered proprietary and they won’t touch them. They won’t permit them being touched.
This looks to me like it is the end of what has been a four-and-a-half — the endgame to a four-and-a-half yearlong effort to overthrow the President of the United States. It looks like it’s exactly that . . . This election has got more firsts than any I can think of and Rudy, we’re glad you’re on the case and pursuing what is the truth.
The next day, Dobbs reported Dominion’s denials, but after listening to Sidney Powell, he said:
This is an extraordinary and such a dangerous moment in our history. . . . Sidney, we’re glad that you are on the charge to straighten out all of this. It is a foul mess and it is far more sinister than any of us could have imagined, even over the course of the past four years.
If Scarry has “no idea if any Fox hosts said the election was stolen,” he didn’t read the evidence in the case. There’s so much more. Dobbs, on November 14, quote-tweeted a Giuliani lie about Dominion with, “Read all about the Dominion and Smartmatic voting companies and you’ll soon understand how pervasive this Democrat electoral fraud is, and why there’s no way in the world the 2020 Presidential election was either free or fair.” On November 16, Dobbs interviewed Powell again, and plainly endorsed her claims:
Dobbs: It’s — it is a deeply, deeply troubling election, as I said earlier, the worst in this country’s history, bar none, and we have seen official investigative and Justice Department officials slow to move, and it is infuriating to everyone.
Powell: No, we’ve seen willful blindness. They have adopted a position of willful blindness to this massive corruption across the country, and the Smartmatic software is in the DNA of every vote tabulating company’s software and system.
Dobbs: Yes, and it is more than just a willful blindness. This is people trying to blind us to what is going on.
On November 30, after saying he would be “tempted to prosecute” Brian Kemp and Brad Raffensperger “based on their conduct so far,” Dobbs let Powell speculate that “it seems that there were significant benefits for both Governor Kemp and perhaps Mr. Raffensperger also, and maybe others on their team, for deciding at the last minute to rush in a contract for Dominion for $107 million for the state.” Dobbs went on:
We have, across almost every state, whether it’s Dominion, whatever the company – voting machine company is, no one knows their ownership, has no idea what’s going on in those servers, has no understanding of the software, because it’s proprietary. It is the most ludicrous, irresponsible and rancid system imaginable in the world’s only superpower.
Dobbs added:
This president has to take, I believe, drastic action, dramatic action, to make certain that the integrity of this election is understood, or lack of it, the crimes that have been committed against him and the American people.
On December 10, Dobbs tweeted that “the 2020 Election is a cyber Pearl Harbor: The leftwing establishment have aligned their forces to overthrow the United States government.” The tweet embedded an unattributed document alleging the existence of “an embedded controller in every Dominion machine.” Dobbs vowed to Powell that night:
Let me — let me make you an offer very straightforwardly: We will gladly put forward your evidence that supports your claim that this was a Cyber Pearl Harbor. We have tremendous evidence already but — of fraud in this election, but I will be glad to put forward on this broadcast whatever evidence you have, and we’ll be glad to do it immediately. . . . We’ll work overnight. We will — we will take up whatever air we’re permitted beyond this broadcast, but we have to get to the bottom of this.
Neutral reportage, this isn’t. There is a reason why the judge concluded, in refusing to dismiss the complaint:
To assert and benefit from [the neutral reportage] defense, a defendant must show that the defendant accurately and dispassionately reported the newsworthy event . . . Fox and its personnel pressed their view that considerable evidence connected Dominion to an illegal election fraud conspiracy. In addition, the Court notes that it is reasonably conceivable that Fox was not dispassionate. Given that Fox apparently refused to report contrary evidence, including evidence from the Department of Justice, the Complaint’s allegations support the reasonable inference that Fox intended to keep Dominion’s side of the story out of the narrative . . .
Moreover, the Complaint alleges numerous instances in which Fox personnel did not merely ask questions and parrot responses but, rather, endorsed or suggested answers. Fox therefore may have failed to report the issue truthfully or dispassionately by skewing questioning and approving responses in a way that fit or promoted a narrative in which Dominion committed election fraud . . .
The neutral reportage defense does not apply when the press espouses or concurs in the charges made by others or who deliberately distorts these statements to launch a personal attack on the plaintiff. (Emphasis added; quotations and citations omitted).
Scarry also claims that Jeannine “Pirro told her audience what Trump’s lawyers said.” That’s a rather bland way of describing Pirro’s hearty endorsement of Sidney Powell’s theories in her November 14 interview:
Pirro: I assume that you are getting to the bottom of exactly what Dominion is, who started Dominion, how it can be manipulated if it is manipulated at all, and what evidence do you have to prove this?
. . .
Pirro: If you could establish that there is corruption in the use of this software, this Dominion software, as you allege, and you say you have evidence, how do you put that together and prove that on election night, or immediately after, that at the time the votes were being tabulated or put in, that we can prove that they were flipped?
. . .
Powell: It was created for the express purpose of being able to alter votes and secure the re-election of Hugo Chávez and then Maduro. … There’s an American citizen who has exported it to other countries. And it is one huge, huge criminal conspiracy that should be investigated by military intelligence for its national security implications.Pirro: Yes, and it — hopefully, the Department of Justice, but — but who knows anymore. Sidney Powell, good luck on your mission.
Now, none of this means that Dominion will win this case, or win everything it is asking for. But it is simply not accurate to present this as a lawsuit in which Fox did nothing more than report on what the president’s lawyers were arguing, adding no comments by its opinion hosts espousing these theories to their viewers.