A Delaware Superior Court Judge with a Name in Culture: Fox News, Dominion Voting Systems, and the Trump-Pelosi Correspondence
The fate of a $1.6 billion defamation lawsuit against Fox News lies, for the moment, in the hands of a plainspoken judge known for his unflinching poker face.
Delaware Superior Court Judge Eric M. Davis, a 12-year veteran of the state’s bench and former corporate attorney, has often sought to temper emotions in the contentious proceedings between the broadcasting giant and Dominion Voting Systems, a voting-technology company. Both sides have accused the other of acting in bad faith.
“If he were to be given a name in culture, it would be Cool Hand Luke,” says Joseph Hurley, a criminal defense attorney based in Wilmington who has argued before Davis but has no involvement with the case. “In court, he never shows any emotion, and I mean that in a good way.”
Fox News said in a statement that the core of the case remained freedom of the press and free speech, which were protected by the New York Times v. Sullivan.
Davis earlier this month denied Newsmax’s request to toss out Smartmatic’s defamation claim. Davis ruled that the facts pleaded by Smartmatic lead him to “reasonably infer” that Newsmax’s airing of stolen-election claims was reckless enough to meet the high legal bar required for defamation.
This all appeared in the same memo that claimed Dominion’s software flipped votes from Trump to Biden, and tied the election company to a conspiracy involving Democrats Nancy Pelosi, then the House speaker, and Sen. Dianne Feinstein.
The judge stated that Newsmax had a high degree of awareness that its statements about Smartmatic’s role in the election-fraud narrative were likely false.
“It seems pretty clear to me that [the judge] was not having any of the Newsmax arguments – and nor should he have, by the way,” says John Culhane, a professor at Delaware Law School.
Culhane cautions not to draw too strong a conclusion from Newsmax’s decision and says that Davis is very clear about what he is doing when it comes to the law.
The legal team for Fox News stated that the network merely relayed questions about national elections, or by reporting on pending allegations. Lawyers for Newsmax and Fox argue that Trump was among the most famous people in the world.
Smartmatic has sued Fox for over $2 billion, but that suit isn’t nearly as far along as the one by Dominion. On Tuesday, a New York state appellate court rejected Fox News’ motion to have the Smartmatic case against the network and several of its stars dismissed. The claims against Fox Corp were dismissed by the ruling.
Connolly said it would be filing an amended complaint that details the Murdochs’ involvement.
Much like Fox’s lawyers in New York and Delaware, Newsmax’s attorneys similarly cite a legal privilege, known as neutral reportage, allowing it to present “unprecedented allegations without adopting them as true, so that the public could draw its own conclusions” about “a news story of extraordinary public interest.”
While he notes the First Amendment protects reporters in order to guarantee a “robust and unintimidated press,” he also states the “First Amendment is not unlimited.” The principle of neutral reportage doesn’t mean that a publisher can make false statements and launch a personal attack on a public figure.
Newsmax and Fox didn’t drop a link: Why is Davis so sarcastic in an email? How a judge responded to a comment on a story by Davis
Newsmax gained some viewers when many abandoned Fox due to its projection that Biden would win Arizona. At the same time, hosts and guests on both networks were amplifying the false claims of fraud.
In the two cases, there’s a great deal at stake. Yet Davis does not seek to amplify his own profile. His court refused to make a photo of him available for this story. The Delaware legal bar is renowned for its air of comity around proceedings.
In a court hearing in the suit against Fox, Davis said he was surprised that he came off as being sarcastic in an email.
He put it down to his use of a pat phrase. “You know, that is a typical sarcastic thing judges say?” Davis was interested in the matter. “‘Tell me if I’m wrong…’ Which means, don’t tell me I’m wrong. It means I’m making a statement. But that wasn’t why I was doing it.”
The Fox Business Network Sentiment: An Attorney-Instructive Case of Election Fraud Evidence on Fox News Anchor Maria Bartiromo
The network’s top stars sent contemptuously of the claims when in group chats, but also denounced colleagues for pointing that out.
Desperate to win back the Trump supporters, Fox News and the Fox Business Network turned at least a dozen times to a pro-Trump attorney named Sidney Powell who forwarded a memo entitled “Election Fraud Evidence” to Fox anchor Maria Bartiromo. Bartiromo hosted Powell on her Fox News show the day after receiving it.
The court filing offered the most vivid picture to date of the chaos that transpired behind the scenes at Fox News after Trump lost the election and viewers rebelled against the channel for accurately calling the contest in Biden’s favor.
This lawsuit is about “protecting the integrity of our public discourse itself,” Dominion lawyer Rodney Smolla said, adding cases like these “protect the public from deliberate falsehoods.”
Fox News stars and executives hated their colleagues in the newsroom who told viewers that claims were baseless.
A person with direct knowledge of the matter told CNN that Heinrich was blindsided reading the details in the legal filing and was not aware of the efforts by top hosts behind the scenes to get her fired.
In another case, when host Neil Cavuto cut away from a White House press briefing where election misinformation was being promoted, senior Fox News leadership were told such a move presented a “brand threat.”
The next day, Scott wrote to Rupert Murdoch that Fox needed to retain “the audience who loves and trusts us. … [W]e need to make sure they know we aren[‘]t abandoning them.” She wrote to Murdoch that the network would highlight our stars and plant flags for viewers to see that they are heard and respected.
The executives of Fox News had criticized some of their top talent behind the scenes, according to the court filing. The network president stated that the North Koreans did a more nuanced show than Lou Dobbs did. The producer of “Justice with Judge Jeanine” referred to the host asnuts.
Fox News: “We took the seriously” under Ailes and Powell during the 2016 Post-Election Season, and what she never told us
Jason Koerner/Getty Images; Jason Koerner/Getty Images; Carolyn Kaster/AP; Alex Brandon/AP; Michael Brochstein/SOPA Images/LightRocket via Getty Images; Slaven Vlasic/Getty Images
The stars, producers and executives of the network expressed contempt for the same conspiracies, calling them “mind-blowingly nuts,” ” totally off the rails” and “completely bs”.
Fox earlier said it had hired an outside lawyer to investigate Grossberg’s concerns. It says it has transformed the network’s culture under chief executive Suzanne Scott. The late Fox News chairman Roger Ailes was ousted in 2016 after a raft of accusations of sexual harassment, which he denied.
Of Fox’s main opinion stars, only Tucker Carlson directly challenged Powell on the air during the post-election season. “We took her seriously,” Carlson told viewers on Nov. 19, 2020. She never sent us evidence despite a lot of requests. Not a page. She told us to stop contacting her when we kept pressing.
Dobbs’ show on Fox Business was canceled after the January 6 attack and Fox News did not report it to the House Select Committee
The cable network’s lawyers said in a statement that the 10 figure request for damages is designed to “generate headlines” and enrich the company’s controlling owner.
Under the high legal bar of actual malice, defined in that 1964 U.S. Supreme Court decision involving The New York Times, Dominion has to show Fox acted either with knowledge that what it was broadcasting to the public was false, or that it acted with reckless disregard of the truth.
On Nov. 5, 2020, just days after the election, Bret Baier, the network’s chief political anchor texted a friend: “[T]here is NO evidence of fraud. None. There are allegations and stories. It is on the social media site, “Twitter.” Bulls—.”
Dobbs’ show on Fox Business – in which he routinely promoted baseless conspiracies about the 2020 election – was canceled a few weeks after the January 6 insurrection.
His departure two months later was termed a retirement by Fox News; through an intermediary, Sammon has declined to comment on that, citing the terms of his departure.
The network rebuffed Trump because “it would be irresponsible to put him on the air” and “could impact a lot of people in a negative way,” according to Fox Business Network President Lauren Petterson, whose testimony was cited by Dominion in the new filing.
The House select committee that investigated the January 6 attack did not know that Trump had made this call, according to a source familiar with the panel’s work.
The panel sought to gather a detailed account of how Trump made his decisions on that day. Some of the gaps in the record occur due to the obstacles the committee faced, according to his call to Fox News.
In a legal brief, lawyers from Dominion claim that President Trump tried to get on the air after the Capitol came under attack.
He questioned the editorial decision of the network to embrace Trump’s election denialism, which he claims was done because Fox was afraid of losing its pro-Trump audience.
A woman who says the wind talks to her and put forth claims of election fraud in the 2020 presidential race that she admitted were “pretty wackadoodle” turns out to be a key source of allegations that Fox News presented, night after night, to millions of viewers late that fall.
The allegations of fraud were delivered in a memo. It was written by a woman named Marlene Bourne, who admitted her claims were “pretty wackadoodle.”
Fox’s legal briefs say that her law firm gave the network a draft version of her civil complaint, which included “pages of allegations purportedly summing and quoting communications with Fox News’ attorneys.”
The woman, who is not named in the legal brief, wrote that she knew the late Supreme Court Justice Antonin Scalia had been killed during a week-long human hunting expedition at an elite social club. (Scalia, a favorite of many Fox News hosts, died in 2016 of a heart attack, according to local officials in Texas, where he died.)
And the woman asserted that the late Fox News chairman Roger Ailes and Fox Corporation founder Rupert Murdoch “secretly huddle most days to determine how best to portray Mr. Trump as badly as possible.” Ailes had been dead for three years when the woman wrote the memo.
“Who am I? And how do I know all of this?… The woman, who was a little girl when she dreamt, wrote about her dreams in an email shared by Powell with Bartiromo and Dobbs. “I was internally decapitated, and yet, I live.”
Dominion’s “crazy” theories and the Fox Business Network’s Laura Petterson when she was a senior executive over Fox’s weekend shows
David Clark, then the senior executive over Fox’s weekend shows, later said under oath to Dominion’s lawyers that he “would not have allowed that claim to be aired,” had he known this memo was the sole foundation of the “crazy” theories.
“I hated the whole narrative that Sidney was pushing, I did not believe it for a single second”, according to a deposition conducted two years later.
By Nov. 8, Fox Business Network senior vice president Gary Schreier was warning the channel’s president, Lauren Petterson, that Bartiromo “has GOP conspiracy theorists in her ear and they use her for their message sometimes.”
As Dominion’s lawyers noted, however, such skepticism about Bartiromo from senior executives did not inspire them to block her program that day or from rebroadcasting it hours later.
Bartiromo was not alone in possessing the memo; Dobbs received it too, and Bartiromo had shared that memo with a senior producer and top booker, Abby Grossberg.
Grossberg claims she left prep sessions with Fox attorneys thinking she had to downplay the importance of show ratings at Fox News, as this would suggest a reason for why the stories about Dominion went on air in the first place.
After appearing on Bartiromo, Powell appeared again on Fox News two days later on a show hosted by Ingraham. Hundreds of thousands of votes are being injected into the computer systems repeatedly according to Powell.
She didn’t. Republican and Democratic state and local officials had differing opinions of her claims. The Trump administration had election integrity officials and some Fox News journalists. No matter. Powell appeared on both Fox News and Fox Business Network and was often accused of being a part of the conspiracy to destroy the nation.
MyPillow.com : How the Murdochs and Bartiromo destroyed the Fox News ad campaign in South Carolina
On Nov. 29, Bartiromo landed the first interview with Trump since Election Day, telling him, “This is disgusting and we cannot allow our elections to be corrupted.”
Three weeks after the siege of the U.S. Capitol by supporters of Trump and Biden, Carlson invited on one of his main advertisers: the founder of MyPillow.
Yup, Fox hosts and the Murdoch family were OK with discrediting the core engine of America’s democracy — our ability to peacefully and legitimately transfer power — if it would hold their audience and boost their stock.
I’ve never met Haley, but from afar it seemed that she had a reasonably good story to tell — a successful South Carolina governor from 2011 to 2017, Trump’s first U.N. ambassador and the daughter of Indian immigrants. Her mother Raj went to study law at the University of New Delhi, and later earned a master’s degree in education after moving to South Carolina. Her father, Ajit, earned a doctorate from the University of British Columbia and then taught as a biology professor at Voorhees College for 29 years. On the side, they even opened a clothing boutique.
The experts cautioned that they didn’t want to see the formal legal response from Fox News, but they all agreed that the evidence in the legal filing is a serious threat to the channel.
Floyd Abrams of Pentagon Papers fame said the revelations had put Fox in a more precarious situation in defending against the lawsuit on First Amendment grounds.
The article was originally published in theReliable Sources newsletter. Sign up for the daily digest chronicling the evolving media landscape here.
RonNell Andersen Jones, a professor and media law scholar at the University of Utah, described the evidence as “pretty voluminous” and said that she too had never seen evidence like it collected in a high-profile defamation case against an outlet as enormous as Fox.
Tushnet said that in all of her years practicing and teaching law, she had never seen such damning evidence collected in the pre-trial phase of a defamation suit. Tushnet didn’t recall anything like this. Donald Trump seems to be good at generating things that have never been before.
David Korzenik, an attorney who teaches First Amendment law, believes that the case against Fox News has serious teeth.
This is a very large part of the brief, Jones said. “Dominion’s filing here is unique not just as to the volume of the evidence but also as to the directness of the evidence and the timeline of the evidence.”
Jones said that it was not something they often see. “When coupled with the compelling storyline that Dominion is telling about motivation — the evidence that at least some key players in the organization were actively looking to advance some election denialism in order to win back viewers who had departed — it makes for a strong actual malice storyline.”
Murdoch followed in the footsteps of the network’s senior executives and sidestepped the truth for a pro-Trump audience angry when confronted with the facts.
Murdoch denied that Fox supported a false notion of a stolen election. Not Fox. But maybe Lou Dobbs, maybe Maria [Bartiromo] as commentators.”
Emails and communications introduced into the case by Dominion show that the Murdochs are involved in the network’s editorial path.
“I’m a journalist at heart,” the elder Murdoch, who is just two weeks shy of his 92nd birthday, said in his deposition. “I like to be involved in these things.”
On election night 2020, he was steadfast about defending Fox News’ call of Arizona for Joe Biden. Murdoch testified that he could hear Trump shouting in the background as the then-president’s son-in-law, Jared Kushner, told him the situation was “terrible.”
Lachlan Murdoch, Scott and a top deputy were warned thatHannity was getting close to the line with his commentary. Murdoch warned that if Trump didn’t concede graciously, “we should watch Sean especially and others not sound the same.”
Scott forwarded his recommendation to the top executive. According to the papers, she and another executive canceled the show because they were concerned that guests would say the election was being stolen and that it would be just a token.
By Nov. 13, Raj Shah, a senior vice president at Fox Corp., was advising Lachlan Murdoch, Scott and Dinh of the “strong conservative and viewer backlash to Fox that we are working to track and mitigate.” He said that positive impressions among Fox News viewers “dropped precipitously after Election Day to the lowest levels we’ve ever seen.”
Former House Speaker Paul Ryan, an anti-Trump Republican, sits on Fox Corp.’s board of directors. He told the Murdochs that Fox News shouldn’t be spreading conspiracy theories. He testified that he told them that Fox could stop supporting Trump during the post- election period.
The United States does not grant news organizations and entertainment companies wide berths under the First Amendment in regards to defamation. Fox has repeatedly stressed that airing the fraud claims was newsworthy and protected under the Constitution.
Norm Eisen of CNN said that it was one of the most devastating depositions he had ever seen. It’s possible to be found guilty of actual malice under the standard when you go beyond reporting, because your chairman admits there was endorsement.
“The evidence that’s been put into the public sphere so far looks like strong evidence that Fox knew the truth and decided to go with an alternate narrative,” Lidsky says.
A Fox News producer on Monday filed a pair of explosive lawsuits against the right-wing talk channel, alleging that the network’s lawyers coerced her into providing misleading testimony in Dominion Voting Systems’ $1.6 billion defamation case against the company.
Grossberg had worked as a senior booking producer for Fox Business host Maria Bartiromo until last year when she took a job with Carlson. The actions of the Fox attorneys who prepared her for her deposition are the focus of her complaint. She names Fox News attorneys Stephen Potenza and Lesley West and two lawyers from their lead outside law firm, Winston & Strawn, as defendants.
Fox says those statements are confidential for “Unrelated” litigation filed in March 2021. A lawsuit was filed by a voting tech company against Fox News after they aired claims that the company helped rig the election for Joe Biden. A trial is going to be held next month.
In the legal documents, Grossberg alleges that Fox attorneys “coerced, intimidated, and misinformed” her before she sat for a questioning by a Dominion attorney last September.
The lawsuits from Grossberg, who has since been placed on administrative leave by Fox, were filed in Delaware Superior Court and the U.S. District Court for the Southern District of New York.
“Fox just does not care,” Grossberg added. Everything is summarized in a perfect way. They don’t care about their employees … and they don’t care about their viewers.”
When asked about Clark in her September deposition, Grossberg had told Dominion attorneys that it was “not fair to say” she disliked him. Clark created a hostile environment at Fox News, according to Grossberg.
The environment was horrible when Grossberg started working on Carlson’s show. On her first day, she said she learned the show’s workspace was decorated with large photos of then-House Speaker Nancy Pelosi “in a plunging bathing suit revealing her cleavage.”
The lawsuit continued to describe a culture at Carlson’s program in which women were subjected to crude terms and in which jokes about Jewish people were made out in the open. Carlson and some of his staff were named in the lawsuit.
CNN News: Dominion Voting Systems is a Small Contribution to the News, and it isn’t a Campaign but a Trial
Grossberg told CNN that he has covered many stories there. “Dominion is just a small portion. I have watched it from the beginning until my last day of work.
“It’s constant,” she added. Ratings are very important to the shows, to the network, and to the hosts. It is a business, and that is what drives coverage.
Lawyers for Fox News on Wednesday accused Dominion Voting Systems of manipulating data to reach the eye-popping $1.6 billion figure that it’s seeking as part of its defamation lawsuit against the network.
There was a big hearing in Delaware Superior Court, where the sides tried to convince Judge Eric Davis to grant them summary judgment, instead of proceeding to a jury trial next month.
“They made the decision to let it happen,” Nelson said, referring to the litany of baseless claims about the voting company that got airtime on Fox News in late 2020.
Lawyers for the right-wing network wrote that live testimony at trial will add nothing other than media interest. This is a trial and not a campaign.
The President who lost an election could have made allegations about widespread fraud, and that’s a bigger story than what happened, opined Davis from the bench.
Instead, “all we ever did was provide viewers with the true fact that those allegations were being leveled by the siting President and his lawyers, all throughout the country,” she told the judge.
“Some of our commentators were endorsing it,” he said, when asked about the hosts’ on-air positions about the election. I would have liked us to be stronger in condemning it.
Ray Epps, the Arizona man that January 6 FBI plotted to orchestrate the DC insurrection, has spoken publicly against the FBI and the right-wing media
She said that the calculations were dishonest and that the company assumed they would get every business decision they made even though there was no guarantee. In previous court filings, Dominion has said that its calculation are proper. Experts were hired to evaluate the books and loss of business opportunities, and that led to the $1.6 billion figure.
An attorney for Ray Epps, the Arizona man that January 6 conspiracy theorists falsely claim led an FBI plot to orchestrate the insurrection, demanded an on-air retraction Thursday from Fox News and its right-wing talk host Tucker Carlson, and claimed they made “false and defamatory statements” about him.
In the aftermath of the January 6 attack on the US Capitol, conspiracy theorists baselessly suggested that the assault was a so-called “false flag” operation staged by the federal government to make supporters of then-President Donald Trump look bad.
The right-wing extremists baselessly claimed that Epps was involved in a secret FBI plot to plan the attack. Carlson has repeatedly breathed life into those conspiracies by giving them attention on his highly rated program. On numerous occasions, Carlson has mentioned Epps on his show, and has played some footage from January 6 of him at the Capitol.
According to the transcript of his interview with the House committee that investigated on January 6, the man denied that he ever worked for the FBI or federal law enforcement. He told the committee that he attended the DC protest because he was concerned about voter fraud.
The lawyer for the Epps said the conspiracy theories have been discredited by videos and accounts from those at the January 6th events.
This isn’t Teter’s first foray into the legal fallout from January 6. He has publicly pushed for professional accountability against lawyers who have spread election lies. The managing director of the 65 Project is trying to take action against attorneys who pushed false claims about the election.
The Fox News Senior Producer, Maria Grossberg, Is Not a Detector of Dominion-Related Libel Reporting
The former senior producer at Fox News has offered herself as a witness in the libel suit against the network.
“That did not happen with respect to Dominion-related reporting which was allowed to receive significant airplay without any evidence implicating them in any way,” Grossberg’s filing states.
She said that Fox executives did not give her the support she needed and instead gave her promotions to her male colleagues.
In her new legal filing, Grossberg recanted her sworn statement to Dominion attorney Davida Brooks that Fox did not have an obligation to correct false claims made on the network’s shows. Grossberg said Maria should have given an answer with facts or follow up questions, since guests had the right to answer how they pleased.
She also acknowledges receiving many messages from Dominion seeking to correct the falsehoods, but says she did not read all of them because they “all looked the same” at a glance, and she had too much to do on a show she describes as severely short-staffed.