Today Judge Eric Davis issued a ruling on cross motions for summary judgement in Dominion’s multi-billion dollar defamation lawsuit against Fox News. The media is generally reporting this decision as akin to a tie. That’s because the judge, while denying Fox News’ motion for summary judgement, also denied Dominion’s motion for summary judgement. Thus, the case goes to trial next month.
What the reporting generally fails to acknowledge is that the judge ruled partially in Dominion’s favor on the elements of defamation in a manner that will greatly handcuff how Fox can defend itself at trial. Essentially, the judge ruled that Dominion proved EVERY element of defamation save one, leaving only that one to argue at trial. Let’s start with the basic element of falsity.
"The evidence...is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true. Therefore, the Court will grant summary judgment in favor of Dominion on the element of falsity."
As you can see from the above screen save, the emphasis on “CRYSTAL” was the court’s and not my own. Put simply, Fox cannot argue truth as a defense to the jury. The judge has already ruled that EVERY claim of falsity asserted by Dominion were indeed false statements by Fox. Next up defamation per se.
"the Court holds, as a matter of law, that Dominion is entitled to summary judgment on the element of defamation per se."
This means the court found Fox falsely accused Dominion of a crime. Thus, Dominion will not have to prove specific damages to the jury, they will be assumed.
"[Fox] cannot avail themselves of certain defenses like the neutral report and fair reporting privileges or the privilege for opinion."
These privileges amount to a claim that Fox merely fairly reported what others, including Trump and Sidney Powell, were saying, or that Fox’s false statement were mere opinion that cannot serve as a basis for defamation. The court says that's not true, and Fox can't even argue that to the jury.By granting Dominion summary judgement on these issues, Fox cannot even present these arguments to the jury.
So what’s left? What can Fox argue to the jury? The court essentially found that Dominion proved every element of defamation, and shot down every Fox defense, save one, actual malice. The court found that one question presents material facts in dispute. That is the only argument Fox may avail itself of at trial.
That the judge did this is not surprising. In my review of case law I was unable to find a single example where summary judgement was granted to a public plaintiff in a defamation case having to meet the actual malice standard. To the best of my knowledge, this would have been a first.
Still, Fox will have a daunting task defending itself limited to that one element. Internal memos and testimony from depositions show Fox’s own fact checkers knew the claims were false, and that on air personalities and executives did too. One of Fox’s own producers has sued it for encouraging her to lie in her depositions on this issue. You can bet Dominion will call her at trial.
Fox would be well served to start very serious settlement discussions with Dominion. Cause, damn.