The fate of Fox News’s defamation suit against Smartmatic: The unflinching judge of Dominion vs Fox News
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. Each side repeatedly has 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. He rarely shows his emotion, and that is a good thing.
Dominion sued Fox for airing false claims that it helped cheat then-President Donald Trump of a win in the 2020 elections. Both sides just filed motions asking Davis to grant them victory ahead of the jury trial scheduled to start in April. The motions have not been made public.
The two cases have intersected several times. The evidence that Newsmax had against Smartmatic was brought to his attention by a Nov. 17, 2020 email from Dominion officials.
Smartmatic was the subject of claims that its software had switched Trump votes to Biden. The claims were broadcasted on Fox News.
“Newsmax either knew its statements about Smartmatic’s role in the election fraud narrative were false, or it had a high degree of awareness that they were probably false,” the judge stated.
“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 against drawing too strong a conclusion from the Newsmax ruling and says that Davis is step-by-step when it comes to the law.
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The most prominent stars and high-ranking executives at Fox News privately ridiculed the claims of election fraud in the 2020 election despite the right-wing channel’s allowed lies about the presidential contest to be promoted on its air.
Smartmatic also has sued Fox for $2.7 billion, but that suit is not as far along as Dominion’s. 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 ruling did not state a cause for dismissing the claims against Fox Corp.
Smartmatic attorney Erik Connolly said it would file an amended complaint that “details the involvement of [Fox Corp. leaders] Rupert Murdoch and Lachlan Murdoch.”
Newsmax’s attorneys use a legal privilege called a neutral reportage to allow it to present “unprecedented allegations without adopting them as true” so that they can be used by the public.
He states “the First Amendment is not unlimited,” because it protects reporters in order to guarantee arobust and unintimidated press. A neutral reportage principle doesn’t protect a publisher who deliberately distorts statements to launch a personal attack on a public figure.
The legal filing also underscored how worried Fox News executives and hosts were in the immediate aftermath of the election of losing its viewership to Newsmax, a smaller right-wing talk channel that was saturating its airwaves with election denialism.
The Philadelphia sarcastic comment on the lawsuit against the Fox News Channel: Donald Trump cheated of election victory and the role of the Fox nut
The stakes in the two cases are very high. Yet Davis does not seek to amplify his own profile. His court wouldn’t allow a photo of him to be used for this story. And the judge has repeatedly sought to ensure an air of comity around the proceedings, a hallmark of the Delaware legal bar.
In a February court hearing in the suit against Fox, Davis apologized to the other legal teams, saying he came off as funny in an email he’d read.
He pinned it on his use of a pat phrase. “You know that typical sarcastic thing that judges say?” Davis asked what it was. “Don’t tell me I’m wrong!” That’s what it means. It means that I’m making some kind of statement. That was not the reason I was doing it.
In the days and weeks after the 2020 elections, the Fox News Channel repeatedly broadcast false claims that then-President Donald Trump had been cheated of victory.
Carlson said in a text that Sidney Powell, an attorney for the Trump campaign, was lying and that he had caught her doing so. Ingraham responded, “Sidney is a complete nut. Nobody will work with her. Ditto with Rudy.
There wasn’t a lot of faith in the election fraud allegations even among those Fox figures who were in lockstep with the Trump campaign.
The network said that the case’s core is the freedom of the press and freedom of speech, which are protected by the Constitution.
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Carlson had sent a text message to Hannity that he wanted to get her fired. “Seriously … what the f**k? I am actually shocked that it needs to stop immediately. It is measurably hurting the company.
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.
Neil Cavuto was accused of being disloyal by colleagues after pulling his show from a presentation by White House spokeswoman Kayleigh McEnany in which she once again made claims of fraud. McEnany is a host on Fox News.
Scott shared a plan to win back viewers with Lachlan Murdoch, the Fox Corporation chief executive. Scott said the right-wing talk channel would “highlight our stars and plant flags letting the viewers know we hear them and respect them.” Murdoch responded that the brand needed “rebuilding without any missteps.”
The court filing indicated that Fox News executives criticized some of the network’s top talent. Jay Wallace, the network president, said that “the North Koreans” did a “more nuanced show” than then-host Lou Dobbs. The executive producer of “Justice with Jeanine” referred to the host as nuts.
Fox News: Social Media Under the Micro-Management Service (SMO) Network. A Few days after the election, Fox News revealed that Fox News had no evidence of election fraud
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 network’s executives, stars, and producers had contempt for the same conspiracy, often calling them “mind blowingly nuts” and ” totally off the rails”.
Bill Sammon, the network’s Washington Managing Editor, wrote in December of 2020 about how weak ratings make good journalists do bad things. Network executives were upset with the hit to Fox News’ brand among its viewers. There wasn’t any apparent concern over the journalistic values of fairness and accuracy, only inquiries from Murdoch.
Fox News host Maria Bartiromo was first to interview Powell, the Trump attorney, on Nov. 8, 2020, a few days after the election. One of the most fervent legal advocates for Trump would be Powell. In her deposition, Bartiromo conceded Powell’s claims lacked any substantiation.
In a separate filing, also released to the public on Thursday, the cable network’s attorneys say Dominion’s ten-figure request for damages is designed to “generate headlines” and to enrich the company’s controlling owner, the private equity fund Staple Street Capital Partners.
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.
The network’s political anchor sent out a text to a friend saying that there was no evidence of fraud the day after the election. None. There are allegations and stories. There is a micro-management service called Social Networking Website, or in other words, a website dedicated to the dissemination of information on the internet. Bulls—.
On the air, Dobbs was among the most muscular proponents of Trump’s baseless claims of election fraud. He was forced out of Fox the day after Smartmatic filed its own $2.7 billion defamation case against the network.
He was let go by Fox News two months after his departure, but Sammon has declined to give a reason for his departure.
The legal experts cautioned against interpreting the evidence in the legal filing as anything other than a serious threat to Fox News, however they all agree that the evidence shows a serious threat to the channel.
“It’s a major blow,” attorney Floyd Abrams of Pentagon Papers fame said, adding that the “recent revelations certainly put Fox in a more precarious situation” in defending against the lawsuit on First Amendment grounds.
A version of this article first appeared in the “Reliable Sources” newsletter. The daily digest will chronicle the evolving media landscape here.
Rebecca Tushnet, the Frank Stanton Professor of First Amendment Law at Harvard Law School, described Dominion’s evidence as a “very strong” filing that “clearly lays out the difference between what Fox was saying publicly and what top people at Fox were privately admitting.”
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 said he didn’t remember anything similar to this. “Donald Trump seems to be very good at generating unprecedented situations.”
David Korzenik, an attorney who teaches First Amendment law and represents a number of media organizations, said that the filing showed Dominion’s case against Fox News has serious teeth.
Jones said it was a pretty staggering brief. “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.”
“This ‘out of the horse’s mouth’ evidence of knowing falsity is not something we often see,” Jones added. It makes for a strong malice storyline when you combine the compelling story that the organization is telling about motivation and the evidence that some key players were actively looking to advance election denialism in order to win back viewers who had left.