11 Feb Fox News

“Is Fox News a news channel or an entertainment channel? That distinction could be determinative of whether Fox pays Dominion $1.6 billion in damages.” – The Lonely Realist

Dominion, the voting machine company, has sued Fox News for $1.6 billion for defaming it, alleging that Fox repeatedly and knowingly broadcast false claims that tied Dominion’s voting machines to election fraud. The facts are not in dispute. The law is less clear.

Defamation is defined as any false information that harms a reputation. It includes both libel and slander, libel being defamatory statements that are published or broadcast … as Dominion has accused Fox of doing. To be treated as defamation, a statement must name the defamed party, which Fox did in naming Dominion in its broadcasts, damage the defamed party’s reputation, be “false,” and have been made for a “bad reason.” These latter three requirements, reputational damage, falsehood and bad reason, are the hinge issues in Dominion Inc. v. Fox News Network LLC. To succeed, Dominion will have to prove that it suffered the amount of reputational damage it is claiming. In a notable 1986 antitrust case, although the upstart United States Football League proved that the National Football League had used its monopoly power to suppress and, ultimately, destroy it, the jury determined that the USFL had been damaged only to the extent of $1. The court accordingly trebled the amount and awarded the USFL $3.

The facts in the Dominion lawsuit are not in dispute. During a series of interviews, including with attorneys Sidney Powell and Rudy Giuliani, Fox interviewers failed to challenge repeated statements about the alleged fraudulent actions of Dominion. At times, its anchors echoed those statements. Powell told Maria Bartiromo that there was “a massive and coordinated effort to steal this election” and “manufacture votes for Joe Biden,” that Dominion voting machines were “flipping votes in the computer system,” and added on Sean Hannity’s program that Dominion “ran an algorithm that shaved off votes from then-President Donald Trump and awarded them to Biden.” Neither Bartiromo nor Hannity challenged those allegations (and Dominion’s attorneys have indicated that Hannity has testified that he “did not believe [Powell’s fraud claims] for one second”). Giuliani stated on Fox & Friends that Dominion machines were “developed to steal elections.” Lou Dobbs, a Fox anchor, independently volunteered that Dominion machines were part of “the most ludicrous, irresponsible and rancid system imaginable” and that President Trump “has to take, I believe, drastic action, dramatic action” to combat it. During a Dobbs’ interview, Powell said that a “controller module” in Dominion machines allowed Dominion executives to “manipulate the vote” and “sell elections to the highest bidder,” with Dobbs later tweeting that “there was an embedded controller in every Dominion machine that allows an election supervisor to move votes from one candidate to another,” describing this as a “cyber Pearl Harbor.” Dominion has alleged that there were 774 statements on Fox News in the weeks following the 2020 election challenging the result or asserting claims of election fraud that directly or indirectly implicated Dominion’s role.

Do these Dominion v. Fox News facts satisfy the legal requirements for defamation? Do they reach the level of reputational damage, falsehood, and bad motivation required by the law?

With respect to reputational damage, statements made on Fox News that Dominion was a fraudulent election fixer on their face create reputational damage. The statements also were false when made and Fox News accordingly will not be mounting a “truth defense.” The statements  also could hardly be characterized as “pure opinions” or “rhetorical hyperbole.” They were presented as fact. George Will has labeled the statements as “lies known to be false by those who made them – [a conclusion that] cannot be reasonably doubted.”

To prove defamation, Dominion therefore will have to prove that Fox News acted for a “bad reason.” Determining the appropriate legal standard to use in proving such “wrongfulness” requires a focus on the nature of the defamed party and of the defaming party. If the defamed party is a “public figure,” the standard is higher. The usual test of “wrongfulness” is whether the defaming party acted negligently. However, if the defamed party is a “public figure,” the Supreme Court in New York Times v. Sullivan held that the defamed party must prove that the defaming party acted with “actual malice” (a precedent under challenge from some politicians). Should a company like Dominion be treated as as the type of “public figure” contemplated by the Sullivan Court because of its prominence in the 2020 election?

What of the newsy status of Fox News itself? Does the Sullivan decision require that the “actual malice” standard apply only to news organizations? If Fox News were to be treated by the courts as an entertainment channel rather than as a newscaster, it would be subject to the usual “negligence” standard. The question then would be whether Fox’s “fair and balanced” slogan is an accurate description of its newsy functions or is merely a catchphrase to pander to its entertainment audience. If so, Dominion’s status as a “public figure” would be irrelevant. Treating Fox News as being subject to a “negligence” standard would limit its defense to the weak argument that the relevant statements should be viewed as “rhetorical hyperbole.” Fox would be compelled to argue that its entertainers and their guests were merely expressing “pure opinions” concerning the 2020 election.

If the courts determine that “negligence” is the appropriate standard, there is little doubt that Fox News will be held to have defamed Dominion by not presenting a balanced perspective on the voting machine allegations. If the higher standard of “actual malice” is appropriate, whether because Dominion should be treated as a “public figure” and/or Fox News should be treated as a “news organization,” Dominion would have to prove that Fox had actual knowledge that the statements made on air were false or that by allowing those statements to be broadcast Fox News evidenced a “reckless disregard of whether [those statements were] false or not.” Fox’s public defense purports to rely on the First Amendment, Fox stating that “We are confident we will prevail as freedom of the press is foundational to our democracy and must be protected….” The First Amendment, however, protects Americans only from government suppression. It has nothing to do with defamatory statements made by non-governmental persons. The goal for Fox News, therefore, should be to convince the courts that it is a “news outlet,” that Dominion is a “public figure,” and that it did not act with “actual malice” or in “reckless disregard” of the truth. Even so, and even though Dominion believes that it can prove “actual malice/reckless disregard,” the fact is that several Fox anchors have indicated that they viewed themselves as entertainers. That may make it impossible for Fox News to persuade a court that the standard to be applied is “actual malice.”

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