On Thursday evening, Laura Clawson reported on the latest court filing from Dominion Voting Systems in their defamation case against Fox News. In that filing, Dominion took the extraordinary step of asking the court for a summary judgement. They backed their argument with dozens of internal communications between Fox’s biggest on-air voices and members of Fox management showing that Fox News was well aware that the claims they were airing about Dominion were lies.
That filing, which runs to nearly 200 pages, contains example after example of Fox hosts saying one thing on the air, while admitting behind the scenes that the claims they were promoting were “nuts” and the people they put on the air to expose those claims were simply “lying.” It would be hard to imagine evidence that was more compelling or immediately obvious to a judge or jury.
Fox also provided its own pair of legal briefs seeking a summary judgement. Those briefs claim Dominion is only punishing Fox because it tried to report on a public controversy and that Dominion is now suing simply because they were the “winning side” and Fox “gave a forum” to the losing side in the argument.
But the difference between what Dominion demonstrated and how Fox replied is more than just about semantics. There’s a huge quantitative difference. Enough to show that Fox actually has no answer to the evidence of wrongdoing.
How powerful and obvious is the evidence that Dominion presents in their case against Fox News? About this obvious …
As the The New York Times reports, the Fox reply protests that they were only voicing both sides of this public issue.
In its coverage, Fox News fulfilled its commitment to inform fully and comment fairly. Some hosts viewed the president’s claims skeptically; others viewed them hopefully; all recognized them as profoundly newsworthy.
The problem for Fox is that their brief … is exceedingly brief when it comes to evidence in support of this position. Other than chest-pounding about the First Amendment and these claims that they were only presenting “controversy,” what they don’t have is examples that contrast with the facts that Dominion laid on the table. Fox News repeatedly put people on the air that they knew were lying, and consistently reported false statements as if it were true. They didn’t report both sides of a story, or even present their viewers with a slanted view. They deliberately, systematically, and consistently promoted lies, about Dominion and about the results of the election in general, for the purpose of securing the approval of Donald Trump and maintaining their audience among Trump’s core supporters.
According to a Fox spokesperson, “Dominion has mischaracterized the record, cherry-picked quotes stripped of key context and spilled considerable ink on facts that are irrelevant under black-letter principles of defamation law.” But the issue for Fox would seem to be— even though it’s not required to provide evidence of innocence—Dominion has heaped up the apparent evidence of wrongdoing, and short of that statement, nothing Fox has presented seems to poke a hole in Dominion’s case.
If Dominion’s quotes are cherry-picked, Fox could remedy that by releasing more quotes. Instead, it’s fighting to keep most of the material in Dominion’s brief hidden.
Against the 191 pages of evidence laid out by Dominion—much of which is still redacted at Fox’ request—Fox is able to provide an example of an argument between Tucker Carlson and Trump campaign attorney Sidney Powell, in which Tucker Carlson told his viewers that Powell would no longer be on his show. That’s appears to be Fox’s primary example of his it tried to uphold the truth. But even in this case, Powell continued to regularly appear on other Fox shows, as did other members of Trump’s campaign who were spreading the same statements that Fox knew to be lies. Meanwhile, Carlson also continued to lie about the election results. He just told different lies.
The judge in this case has already made a ruling that shows he’s leaning heavily in the direction of giving Fox the broadest possible leeway. In ruling that Dominion represents a “public figure” any holding of defamation has to meet the very high qualifications behind a finding of “actual malice.” Even so, it’s hard not to see the evidence for such a finding in every page of the information that Dominion presented.
It’s extremely unlikely that the judge will grant Dominion’s request for summary judgement. Such findings in favor of a plaintiff in a suit are very rare, and the genuine issues in this case make it even more certain this is all headed for trial.
However, Fox is going to have to do a lot better than the vague claims in its own brief it if expects to hold out against the onslaught of evidence already provided. And that’s with the majority of evidence still redacted.
The NYT lays out what comes next very succinctly.
The law shields journalists from liability if they report on false statements, but not if they promote them.
The evidence Dominion has presented that this happened is already a mountain. Fox hasn’t been able to summon up a pebble in reply.
It’s going to be a fun trial.
Correction: When I first posted this, I implied that Fox’s filing was a reply to Dominion’s Thursday brief. However, both briefs are individual calls for summary judgement.