Dominion v. Fox News: The Role of “Actual Malice” in the Defamation of the Trump-Biden Era

The biggest media trial since the 1980s may soon include stars from Fox News, including its 92-year-old owner Murdoch, who is accused of sexual harassment.

The real cost of the Dominion lawsuit would be cherished First Amendment rights, but it is a political crusade that is searching for a financial windfall.

Major figures at Fox privately acknowledged that Donald Trump had lost to President Joe Biden in 2020. Fox kept airing conspiracies and lies in order to keep its large audience interested.

Defamation cases are hard to win in the United States, because of the Supreme Court’s ruling in New York Times v. Sullivan in 1964. Defamation has to live up to high standards. An entity can’t have just lied, it must have known (or at least strongly suspected) it was lying at the time, and it has to have been done with “actual malice.” The court has already ruled on the first two, saying that Fox aired lies and knew they were lies, so instead of a question of truth, it’s about whether Fox did so maliciously.

There’s a high bar to prove defamation in the US legal system, thanks to a 1964 Supreme Court ruling. The burden of proof falls on the plaintiff. Dominion attorneys must prove that Fox leaders knew, or should have known, that the statements hosts and guests made against Dominion were false or acted in reckless disregard for the truth.

That high standard is known as “actual malice.” It’s meant to protect media outlets from being punished for reporting critically on powerful figures, including corporations and the government.

To convince the jury that Fox acted negligently, they will need to show that on-air hosts and executives knew what was being said about them was false but still broadcast it.

The public was given a glimpse of how the hosts, producers and executives at Fox really felt about Trump.

Two of those guests were Rudy Giuliani, Trump’s personal lawyer at the time, and Sidney Powell, a Trump ally and attorney. There have been no rulings in the two lawsuits Dominion has against Powell and Giuliani.

Sidney Powell won’t release the evidence and the whole thing is insane. Which I hate,” Carlson texted fellow hosts Hannity and Laura Ingraham a couple weeks after the election.

Murdoch replied under oath that he could have directed Scott not to host Powell and Giuliani on Fox.

Gauging by what Fox has presented in court, the network’s attorneys maintain the election-technology company’s worth is nowhere near the $1.6 billion Dominion is asking for.

The idea that the Fox defamation trial might actually play a role in purging lies about the 2020 election seems far-fetched because the power of his falsehoods has survived many previous collisions with the truth. Although multiple courts in multiple states threw out Trump’s cases alleging election fraud after the 2020 election, the idea that the election was stolen still undermined faith in American democracy among his supporters. A CNN/SSRS poll published in July of 2022, showed that 29% of Republicans believed that the elections were representative of the will of the people.

• Abby Grossberg, a former Fox News producer who alleged that the network’s lawyers coerced her into providing misleading testimony in a lawsuit filed March

“Both parties have made these witnesses very relevant,” Davis said, regarding the Murdochs. The Murdochs were to be on the witness stand.

That could be a major financial hit to Fox. Fox Corporation, the right-wing news outlet’s owner, has an estimated $4 billion in cash on hand, according to its latest earnings statement. It is not known how much insurance the company has, or what any insurance policy would cover.

The case is important to protect the rights of the free press, and a decision in favour of the defendants would havegrave consequences for the Fourth Estate, Fox said in a statement.

The documents detailing the damaging behind-the-scenes communications were included in over 10,000 pages of court documents and are expected to be shown in the trial.

Tucker Carlson, Dominion Voting Systems, and Murdoch’s Dilemma about Post-Election Demography: Preliminary Report

For example, host Tucker Carlson said in one text message he “passionately” hates Trump. In one November 2020 exchange, Tucker Carlson said Trump’s decision to snub Joe Biden’s inauguration was “so destructive,” adding that Trump’s post-election behavior was “disgusting” and that he was “trying to look away.”

Murdoch’s private messages revealed how his own thoughts contradicted what Fox espoused. “Maybe Sean [Hannity] and Laura [Ingraham] went too far,” Murdoch wrote in an email Fox News chief executive Suzanne Scott, apparently referencing election denialism after Trump’s loss to President Joe Biden.

The trial will begin Monday in Delaware at 9 am ET, with expected opening statements at some point during the day. Jury selection is also expected to wrap up Monday morning, ending with a panel of 12 jurors and 12 alternates. It’s anticipated that opening statements will begin immediately after the jury is seated. The trial is supposed to last five to six weeks.

“The Court has decided to continue the start of the trial, including jury selection, until Tuesday, April 18, 2023 at 9:00 a.m. I will make such an announcement tomorrow at 9:00 a.m. in Courtroom 7E,” using the legal term “continue,” which means delay or postpone.

The trial had been scheduled to start on Monday but the judge delayed it until Tuesday. The reason was not immediately clear. The Wall Street Journal said that Murdoch’s Fox had made a late push to resolve the dispute out of court.

Ronnell Anderson Jones, a First amendment expert and professor of law at the University of Utah, said that Dominion had seemed quite motivated to change the record on election denialism.

Some of the highest-ranking executives and most prominent hosts are scheduled to testify during the trial about the lies that the network promoted in the wake of the 2020 election.

Dominion Voting Systems alleges the conservative network promulgated the ex-president’s conspiracy theories, including about its voting machines, to avoid alienating its viewers and for the good of its bottom line.

It could show how truth can be used for political advantage, and highlight a right-wing business model that depends on spin, in a drama expected to happen in a Delaware courtroom. And yet, it remains unclear whether Trump – the primary author of the corrosive conspiracies that the 2020 election was fraudulent – will end up paying a significant personal or political price.

Though he vigorously denies breaking any laws, the former president appears to face the possibility of indictment in probes into his attempt to overturn President Joe Biden’s election victory by a district attorney in Georgia and by special counsel Jack Smith into his conduct in the lead-up to the US Capitol insurrection. And the many layers of Trump’s democracy-damaging behavior were catalogued in interviews and public testimony taken by a House select committee when Democrats controlled the chamber last year.

Trump is campaigning to win back the White House by lying about a corrupt election. Millions of Trump’s supporters have bought into the idea that he was ejected from office because he really won the 2020 election.

It is questionable how much conservatives will know about the trial and whether they will be swayed to change their minds by the information.

Many in the Republican Party are unwilling to challenge Trump, and he continues to spread false information, so irk some party leaders who watched as Trump’s candidates flamed out in swing states last year.

“I think any candidate, to be able to win, is to talk about what we’re for, focus on the future, not look in the rearview mirror,” Kemp told CNN’s Jake Tapper on Sunday.

One core argument in court will likely be trying to show that Fox believed that telling the audience inconvenient truths was bad for business – a factor that drove right-wing media in 2020 and still holds true today. Proof of this can be seen in the way the Republican Party remains unwilling to anger its base voters two years on. While many top party leaders have signaled they want to move on from Trump, the only part of the GOP that has power in Washington – the House Republican majority – has made repeated efforts to shield Trump from accountability over the 2020 election and to distort what actually happened on January 6, 2021.

But the court proceeding against Fox – like the constitutional process that assured a transfer of power between Trump and Biden, albeit one marred by violence – shows that the country’s instruments of accountability remain intact, despite Trump’s efforts.

Over the course of the trial, both the network and premise that there is anything to Trump’s false claims have been embarrassed.

From the opening hours of his presidency, Trump made clear he would create an alternative vision of reality that his supporters could embrace and that would help him subvert the rules and conventions of the presidency. The angry exhortations by Trump’s first press secretary, Sean Spicer, in January 2017 that his boss had attracted the biggest inauguration crowd in history seemed at the time bizarre and absurd. But in retrospect, they were the first sign of a daily effort to destroy truth for Trump’s political benefit, which eventually morphed into lies about a stolen election that convinced many of the ex-president’s supporters. The mob attack on Congress on January 6, 2021 was the culmination of all this.

This is not surprising. Because when he was in office, Trump made no secret of his strategy, telling the world in a moment of candor how he operated.

“Stick with us. Don’t believe the crap you see from these people, the fake news,” he said in a directive to his supporters at a Veterans of Foreign Wars convention in Kansas City in 2018. What you are seeing and what you are reading are not what is happening.

We won in the year of 2016 We won by much more in 2020 but it was rigged,” Trump said in the first big rally of his campaign in Waco, Texas, at the end of March.

Fox News Matters: How the Future Depends on Fox News’s Stars and Executives, and What We Can Learn from Their Defamation

“If you look in the rearview mirror too long while you’re driving, you’re going to look up, and you’re going to be running into somebody, and that’s not going to be good.”

Yet the fact that Trump, according to many polls, remains the front-runner for the Republican nomination in 2024 and is still wildly popular with conservative grassroots voters suggests that it will take far more than a courtroom display to restore the truth about 2020.

At the Republican National Committee’s spring retreat in Tennessee over the weekend, a swing-state GOP governor told major donors the party’s future political success depended in part on Fox News.

Sununu doesn’t seem to dislike the network despite his criticisms. He was a guest on the news program “America’s Newsroom” Monday morning, 48 hours after speaking in Nashville.

Sununu’s remarks echo a consistent theme found unvarnished in the private communications of Fox’s stars and executives by Dominion Voting Systems in its $1.6 billion defamation lawsuit against the network: That Fox is an integral player in Republican politics and the conservative movement.

“We have to start thinking about the long game,” Sununu told Republican donors at the Four Seasons Hotel in Nashville. “We get ourselves tied up in issues. I’m not saying they’re not important, but they ain’t making the team bigger.”

He said the party had an appealing “product” for voters, including younger voters, with an emphasis on low government regulation, low taxes, and local governmental control.

Fox News and the Investigating of Voter Fraud: Sununu and Murdoch at the 2020 Elections, and a Day Before Sean Hannity

Sununu was speaking with the Fox News leadership all the time, he said.

“I go, ‘Look guys, I saw a panel discussion with four panelists on Fox and they all were literally agreeing with each other… The people are in an echo chamber. What are you doing to grow the team?’”

NPR obtained an audio recording of an excerpt of the talk from Lauren Windsor, a liberal activist and consultant, who acquired them from an attendee. The governor’s comments were verified by Vihstadt.

Sununu’s remarks come at a delicate moment for Fox. After a one-day delay, its lawyers are preparing for a six-week trial on Tuesday morning, while negotiating with Dominion’s legal team.

Trump used a list of Fox personality for appointments to his administration. He was told off the air by Fox stars. (Dobbs would be forced out a day after another election tech company, Smartmatic, sued Fox in a $2.7 billion defamation claim.)

In response to a request for comment, a Fox spokesperson noted that surveys suggest its audiences – which are far larger than its peers – include the most Democrats and independents watching.

In November 2020, NPR reported that, on the night before Biden would be projected to win the presidency, Ronna McDaniel was invited onto the show by host Sean Hannity.

An internal GOP memo to prepare McDaniel reflected full knowledge of what would be asked, setting out the specifics of the show’s lengthy opening segment — including its guests and subjects — and Hannity’s main points. They focused on suspicions of voter fraud.

In late September 2020, Murdoch warned Trump’s son-in-law and adviser, Jared Kushner, that the Biden campaign ads were better. The next day, the media magnate, whose former wife had helped reconcile Kushner with his wife Ivanka Trump after a brief split, followed up with another email.

“Your adv at 1.0 pm this Sunday an improvement, but Biden in same football [game] is extremely good. I think so. Will send it,” Murdoch said in an email made public through legal proceedings.

When Fox projected that Biden would win, a star host, Maria Bartiromo, sent a text to one of the Trump’s top political advisers. I am unable to take this.

Bannon had no plans to stand still. He laid out a plan to delegitimize Biden as president, and to get Bartiromo elected to the U.S. Senate while prepping Trump for a White House bid.

Lachlan Murdoch said that News guys have to be careful with how they cover the rally. “So far some of the side comments are slightly anti, and they shouldn’t be. The narrative should state that this is a big event for the president.

Murdoch sent an email to Scott stating that he wanted to help the Republicans win the Senate and that Trump was going to concede eventually.