How election lies, libel law are key to Fox defamation suit

By Jennifer Peltz And Nicholas Riccardi, The Associated Press on April 18, 2023.

A major defamation lawsuit against Fox News goes to trial Tuesday, carrying the potential to shed additional light on former President Donald Trump’s election lies, reveal more about how the right-leaning network operates and even redefine libel law in the U.S. Here are some things to know about the case.

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THE CASE

Dominion Voting Systems is suing Fox for $1.6 billion, claiming the news outlet repeatedly aired allegations that the company’s voting machines were rigged to doom Trump’s 2020 reelection campaign while knowing they were untrue. Fox contends that it was reporting newsworthy charges made by supporters of the Republican then-president and is supported legally by libel standards. After a one-day delay that raised the possibility of a last-minute settlement between the litigants, seating of the jury is scheduled to start Tuesday, followed immediately by opening statements.

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ELECTION DISCONNECT

Denver-based Dominion has produced evidence that prominent people at Fox didn’t believe the fraud allegations, even as the network gave Trump’s allies airtime to repeat them. Multiple staffers texted and emailed in disbelief as Trump latched onto increasingly tenuous claims of being robbed by voter fraud. Fox’s Sean Hannity said in a deposition that he did not believe the fraud claims “for one second” but wanted to give accusers the chance to produce evidence. Fox founder Rupert Murdoch, questioned under oath, agreed the 2020 election, won by Democrat Joe Biden, was free and fair: “The election was not stolen,” he said. Murdoch even wrote on Jan. 5, 2021, to a top executive urging that prominent Fox personalities issue a statement acknowledging Biden’s legitimate win. At the same time, Murdoch acknowledged that Fox hosts such as Lou Dobbs and Jeanine Pirro at times endorsed false claims of election fraud.

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FOX’S FEAR

The court papers have laid out a profound concern at Fox over the impact of its election night call that Biden had beaten Trump in the battleground state of Arizona – a call that was accurate. Fox scooped its rivals on the call, but it infuriated Trump and many Fox viewers, who expressed their anger and began tuning in to rival conservative media outlets such as Newsmax. Emails and memos released in the case show Fox executives were highly aware of a drop-off in their network’s viewership at the same time that Newsmax was gaining viewers, and the executives viewed that dynamic as a potential threat.

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LIBEL LAW

In its defense, Fox has relied on a doctrine of libel law, in place since a 1964 U.S. Supreme Court ruling, that has made it difficult for some plaintiffs to prove defamation by news outlets. Public figures, and Dominion fits that standard in this case, have to prove not only that the information reported was incorrect but that the news organization acted with “reckless disregard” about whether it was true or not. Fox says Dominion can’t prove its case, but some First Amendment advocates suggest the voting machine company has a strong argument. Their worry is that a prolonged legal battle would give the Supreme Court a chance to change libel laws that would weaken protection for all the media.

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JUDGE’S IRE

The runup to the trial has been rocky for Fox, and not just because the public got a look at such private chatter as primetime host Tucker Carlson saying he “passionately” hated Trump. The trial judge has scolded the network for 11th-hour disclosures about Murdoch’s role at Fox News and about some evidence involving Fox Business host Maria Bartiromo, including recordings of her talking off-camera with Trump’s lawyers. (Fox lawyers later apologized to the judge about the Murdoch matter, saying it was a misunderstanding not intended to deceive.) Fox, meanwhile, won some legal fights over limiting what jurors can hear, including a ruling that bars testimony about the Jan. 6, 2021, insurrection at the U.S. Capitol.

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TRUMP’S INTEREST

Trump has taken a keen interest in the case, judging by his social media posts. Always concerned about loyalty, and nursing a grudge about the Arizona call, he has expressed anger at revelations in the case that many people at Fox not only did not support his fraud allegations but privately disdained them. Trump had stepped up his criticism of Fox as the 2024 Republican presidential primary gained steam, but he recently has given interviews to Carlson and Hannity.

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THE ELECTION

Federal and state election officials, exhaustive reviews in multiple battleground states where Trump challenged his loss, and Trump’s attorney general found no widespread fraud that could have changed the outcome of the 2020 election. Nor did they uncover any credible evidence that the vote was tainted. Trump’s allegations of fraud also have been roundly rejected by dozens of courts, including by judges he appointed.

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