By Tony Pederson
The $1.6 billion lawsuit brought by Dominion Voting Systems against Fox News has disclosed what could be the worst legal and ethical nightmare for any news media company: that its reporters published false information that they knew to be false. In this case, the focus is on Donald’s Trump’s claim that there was massive voting fraud in the 2020 presidential election and that, according to Trump, the election was stolen.
Dominion sells technology and voting machines that were used in more than two dozen states in the 2020 election. Dominion was founded in 2002 in Toronto, Ontario, and is headquartered there and in Denver. The lawsuit is being heard in a Delaware court.
Court filings are clear that on-air talent as well as executives of Fox News didn’t believe the claims being made by the Trump campaign. Yet, the filings indicate the need to continue to report the false claims for fear of alienating conservative viewers that are the core of Fox News’ audience and its economic success.
Lawyers for Dominion have deposed some of the top talent in the Fox News lineup
including Tucker Carson, Jeanine Pirro, Lou Dobbs, Maria Bartiromo, Steve Doocy, and Sean Hannity. Among some of the key revelations in the depositions and court documents, many of which were first reported in The New York Times, are:
- There was clear concern among Fox executives about declining ratings in the days after the election when Joe Biden was declared the winner. One email from Fox Corporation Chairman Rupert Murdoch said: “Getting creamed by CNN! Guess our viewers don’t want to watch it. Hard enough for me.”
- Murdoch, in his deposition, denied that Fox News promoted the Trump conspiracy theory on a stolen election, but he did acknowledge that some of the on-air talent “were endorsing it.” Murdoch said he “would have liked us to be stronger in denouncing it.” In an email to Fox News CEO Suzanne Scott on Jan. 20, 2021, Murdoch condemned Trump’s claim of a stolen election. “Trump insisting on the election being stolen and convincing 25% of Americans was a huge disservice to the country. Pretty much a crime. Inevitable it blew up Jan 6th,” he wrote. “Best we don’t mention his name unless essential and certainly don’t support him.”
- Text messages from Carlson released as a part of court filings cast early doubt on the validity of election fraud claims. “The whole thing seems insane to me,” he wrote. Carlson wrote that Sidney Powell, a Trump lawyer making some of the fraud claims, “won’t share the evidence, which I hate.” Carlson also gave extensive coverage, much of it sympathetic, to the Capitol riot in Washington on Jan. 6, 2021. Even so, he texted staff members in early 2021, “We are very, very close to being able to ignore Trump most nights. I hate him passionately.”
- NBC News reported that, in a pretrial hearing, Dominion lawyers showed evidence that Fox News’ so-called Brain Room, a fact-checking group at the network, had examined claims by Trump and his allies that voting fraud had occurred. The Brain Room conclusion was that the claims were not true. One of the slides presented in court by Dominion had this conclusion from the Brain Room dated Nov. 13, 2020: “FACT: Claims about Dominion switching or deleting votes are 100% false. Dominion systems continue to reliably and accurately count ballots, and state and local election authorities, as well as fact checkers, have publicly confirmed the integrity of the process.” According to NBC, Fox News lawyers had redacted information about the Brain Room, but the judge ordered it released.
Lawyers for Fox News have said that Dominion is “cherry-picking” evidence shown in court to create headlines. Both sides are preparing for trial in mid-April. Some analysts have predicted a settlement based primarily on a perceived fear that Fox would not want its journalists and executives testifying in proceedings that will be even more newsworthy than the release of depositions, texts, and emails has already been. Some journalists and lawyers have expressed the desire for a trial to go forward so that Fox can defend what has become a cherished First Amendment legal precedent that protects even false and potentially libelous information that is published or broadcast.
That precedent dates from 1964 and the Supreme Court’s landmark decision in The New York Times v. Sullivan. In that case, the court said that public officials must not only prove that published material is false and defamatory, but that it was published with knowledge that it was false or with careless disregard as to whether it was false or not. The standard was thus “actual malice,” and in the years since has become a significant hurdle for plaintiffs to reach before collecting libel damages. It is commonly referred to as the Sullivan standard in defamation cases.
Many Democrats and progressives have eagerly awaited such a case as this against Fox News in the hope that the network will be eliminated or least severely diminished. Whatever happens, Fox News, dominant in cable news ratings for years, will not disappear. Whether the case is settled or goes to trial and a result is determined, either against or in favor of Fox, the Dominion case is by far the most serious challenge that has come forward regarding the credibility and the integrity of the network.
Noted First Amendment lawyers, including Floyd Abrams, have said that Dominion has put forward a strong case. In an interview with CNN, Abrams said: “It makes it very difficult, maybe not impossible, for Fox to defend on the ground that, ‘Well, we’re just journalists interviewing people.'” Abrams also noted that the type of evidence Dominion has uncovered in the emails and texts from Fox is quite unusual, making Fox News’ defense even more difficult. Abrams represented The New York Times in the Pentagon Papers case decided by the Supreme Court in 1971.
Joseph Larsen, a First Amendment lawyer with Gregor Wynne Arney in Houston and a member of the board of the Freedom of Information Foundation of Texas, agrees that the defense for Fox News will be difficult. “Very often, once the plaintiff is found to be a public figure, the case is over because of the high standard,” Larsen wrote in an email. “However, in this case, Dominion has strong evidence that Fox and the individual Fox personalities did in fact know that the claims against Dominion were not true or that, at a minimum, published them with reckless disregard for the truth. Fox is arguing that they were just reporting the news, that what the president says is news, whether or not it is true. But again, the evidence shows much more and ties in with a profit motive for Fox to continue publishing the false claims. It will be Dominion’s burden to prove actual malice. It’s not a slam dunk, but it’s as strong a case as I’ve seen.”
Dominion sued former federal prosecutor Sidney Powell and Trump ally Rudy Giuliani for their appearances promoting conspiracy theories about voting irregularities. Another voting machine company, Smartmatic, has also sued Fox. Those separate lawsuits are continuing. More than 50 legal actions were filed by Trump and his allies in various courts around the United States seeking to challenge or overturn the 2020 election. All failed.
Murdoch is no stranger to controversy. His media properties have been accused of numerous conflicts of interest, biased news coverage, coziness with government officials, and, on occasion, criminal conduct. Such was the case with the phone hacking scandal in London.
Reporters at News of the World, a Sunday tabloid since closed, hacked into the cell phone of a young girl who was kidnapped on her way home from school and murdered in 2002. Millie Dowler, 13, was from Walton-on-Thames, a town southwest of London. Reporters got her cell phone number and accessed her voice mail. This caused her parents to believe that Millie was alive when, in fact, she was murdered shortly after she was abducted.
The tabloid environment in London is ferociously competitive and notorious for reporters cutting ethical corners to get a scoop. Reporters often have had cell phone numbers of celebrities, politicians, and members of the royal family. In accessing the voice mail of Millie Dowler, reporters hoped to get a lead as to her whereabouts and possibly who was responsible. The details about the phone hacking did not emerge until 2011 when the man responsible for Millie Dowler’s abduction was tried, convicted, and sentenced.
There were legal proceedings and a major shakeup at News International, a subsidiary of Murdoch’s News Corp. that owned the News of the World as well as The Sun, The Times of London, and The Sunday Times of London. There was a public inquiry during which Murdoch and his son, James, testified before Parliament. Murdoch’s testimony at times seemed halting and uncertain. He refused to take responsibility for the phone hacking and instead blamed the people he had trusted to run the newspaper.
Street protests called for the end of Murdoch’s involvement with news media in the United Kingdom, and some observers predicted that would happen. It didn’t, and Murdoch’s properties continue to have major influence over news in the UK. Murdoch issued a personal apology to Millie Dowler’s parents, and there was a financial settlement.
Fox News was embroiled in a sexual harassment scandal after Gretchen Carlson filed a lawsuit against Roger Ailes in 2016. Ailes was chairman and CEO of Fox News and, shortly after the filing of the lawsuit, resigned. Ailes died in 2017. Fox News also terminated Bill O’Reilly, star of the highest-rated cable news program, The O’Reilly Factor, in 2017. The New York Times reported that Fox and O’Reilly had paid some $13 million to settle multiple sexual misconduct lawsuits. Ed Henry was another of the network’s stars fired after sexual misconduct allegations were made in 2020. Henry has denied the allegations. A popular movie, Bombshell, starring Charlize Theron and Nicole Kidman, was based on the Fox News scandal and released in 2019.
Yet Murdoch has had major accomplishments and contributions to news media during his career building News Corp. that are seldom mentioned. He bought The Times of London in 1981 amid fears of what would happen to one of the best newspapers in the world. The paper and its affiliate publications, including The Sunday Times of London, were purchased at the bargain price of $28 million. At the time, the paper was losing money and was still using antiquated, labor-intensive hot-metal technology. In addition, the Thomson Organization, which owned the paper, was mired in difficult relations with the powerful newspaper unions.
In 1986, Murdoch started what became known as the Wapping Revolution in which he fired union workers but opened a new facility with updated computer technology. A months-long, bitter strike ensued, but Murdoch eventually won. And the newspaper industry in the United Kingdom quickly made the shift to computer technology with its reduced costs.
Murdoch closed the News of the World after the phone hacking scandal, but he still publishes The Times, The Sunday Times, the Sun, and the Sunday Sun. The Sun is a racy, red-top tabloid that for years featured a topless woman on page 3. The Sun is still the largest-circulation newspaper in the UK, despite having dropped the topless woman several years ago. The Sun is very conservative politically and, with other conservative newspapers in London, received a good portion of the blame for the vote in 2016 to leave the European Union. The Times and The Sunday Times remain world-class newspapers of record and are generally in the middle politically. The Times recommended a vote for the UK to remain in the European Union.
There was concern in 2007 when News Corp. emerged as the top bidder for Dow Jones & Company, publisher of The Wall Street Journal. The Bancroft family had owned and published the Journal for more than 100 years, and the concern was that Murdoch would dramatically change the quality of the newspaper and interfere with its editorial processes. The Wall Street Journal continues as one of the most important and trusted financial newspapers in the world.
What Happens to the Sullivan Standard?
Donald Trump has frequently said that the Sullivan standard should be changed to make it easier for plaintiffs to bring defamation cases against news media. His lawyers have made the case in a libel lawsuit Trump filed against CNN in October 2022. The lawsuit accused CNN of comparing Trump to Adolf Hitler and seeks $475 million in damages. Potential GOP candidate Ron DeSantis, governor of Florida, has expressed similar sentiments. Two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have indicated a willingness to revisit the issue in dissenting opinions of the court.
Larsen said that the move to change the Sullivan standard seems motivated by the idea that conservatives are disadvantaged in attempting to litigate issues with a liberal press. But he also has a bit of a different view on what happens if Fox News wins the case.
“I think that the Sullivan standard is probably in greater danger of being lessened if Fox wins than if Fox loses or settles,” Larsen wrote. “If the evidence Dominion has obtained doesn’t ultimately suffice to meet the actual malice test, it’s hard to imagine a case that would. It is a bit ironic that the Sullivan standard in this case is a shield for conservative media. Another instance of the old adage be careful what you wish for.”
Also important is the question of what kind of a news operation emerges after the case is resolved. Will Fox News continue to be a one-sided, arch-conservative network that is perceived as stridently partisan and occasionally a promoter of nutty conspiracy theories? Will the network continue to be dominated by strong personality-driven programming in prime time that caters, and even panders, to a certain audience? Or will Fox News be a fact-based network on the conservative side that tries to be a balance with what is often perceived as a liberal news media for elites dominated by major East Coast media companies? Could the network become an articulate and reasoned channel for reporting and analysis that challenges the liberal and progressive elements that have become prominent in the Democratic Party?
As with any issue dealing with television, it’s about ratings and audience. In the recent March Nielsen data, Fox News continues as the most watched cable news network, including in the prized age demographic of 25-54. Even so, the ratings show declines. Without an election or a major issue such as the COVID pandemic, cable news ratings are typically lower. CNN continues to have poor ratings and to struggle with refocused programming that is more in the middle politically.
Ratings may win the argument, and Fox News may continue its ultra-conservative pitch. A welcome development would be Fox News finding its proper place as a part of the dialogue for democracy, emphasizing quality news and reasoned analysis. We’ll have to wait until after the dust clears from the Dominion lawsuit to see what is next for Fox News.
Tony Pederson is professor of journalism at Southern Methodist University in Dallas. He formerly held The Belo Foundation Endowed Distinguished Chair in Journalism at SMU. Before that, he was executive editor and senior vice president of the Houston Chronicle.