Fox’s PR issues may not translate directly into legal trouble

Over the past three weeks, a drip, a drip, of revelations have revealed widespread alarm and disbelief within Fox News in the days following the 2020 presidential election, as the network is become a platform for some of the most insidious lies about widespread voter fraud. These revelations are the most damning to shake Murdoch’s media empire since the phone-hacking scandal in Britain more than a decade ago.

The headlines grabbed attention. Tucker Carlson, an outspoken defender of former President Donald J. Trump’s populist message, was caught insulting Mr. Trump – “I hate him passionately,” he wrote in a text. Laura Ingraham and Sean Hannity bashed colleagues in their network’s news division. And Rupert Murdoch said he looked forward to the day when Mr Trump would no longer be relevant.

These examples and many more — revealed in personal emails, text messages and testimony made public in Dominion Voting Systems’ $1.6 billion defamation lawsuit against Fox News — are embarrassing. But whether they pose a serious legal danger to Fox in this case is much less clear.

According to lawyers and jurists, several of whom are directly involved in the case, the messages that made headlines may never be presented as evidence when the case goes to trial next month. Fox should ask a judge to exclude certain texts and emails on the grounds that they are irrelevant.

But Fox’s strongest legal defense is the First Amendment, which gives news organizations wide latitude to cover topics and statements by elected officials. In court, attorneys for Fox argued that the network was merely reporting what Mr. Trump and his allies were saying about the fraud and the Dominion machines — not endorsing those lies.

Media law experts said that if a jury finds this to be true — not a far-fetched outcome, they said, especially if the network’s lawyers can show its hosts did not present the allegations as fact — then Fox could win.

“I think the case will really come down to a jury to decide whether or not the company or the commentators have approved of it – that’s really the key question,” said George Freeman, a former New York Times attorney who is now executive director of the Media Law Resource Center, which assists media with their legal issues.

“It gives Fox, I think, a fighting chance,” he added.

Despite the ways Fox could prevail with a jury, legal scholars say Dominion’s case is exceptionally strong.

Attorneys for Dominion say claims by Fox hosts and guests about its machines and their supposed role in a nonexistent plot to steal votes from Mr. Trump were anything but neutral and unbiased reporting.

“Truth and shared facts are the foundation of a free society – even more so here,” his lawyers said in a brief filed with the court on Thursday. “The misconception that Dominion rigged the 2020 presidential election undermines the heart of democracy.”

It’s rare for First Amendment lawyers to side with a media company. But many of them did just that, arguing that a conviction against Fox will send an important message: the law does not protect those who peddle misinformation. And it would help dispel the idea, First Amendment experts said, that libel laws should be rewritten to make libel suits easier, as Mr. Trump and other conservatives, including the judge, have suggested. Clarence Thomas.

In its most recent filings, Dominion argued that the law was more than enough to hold Fox liable.

“If this matter doesn’t qualify as libel, then libel is meaningless,” Dominion said in a legal filing released Thursday.

But legal experts said the case would rise or fall not on how well a jury weighed major concerns about the health of American democracy. Instead, they said, Dominion’s challenge will be to convincingly argue something much more specific: that Fox News knowingly spread false information or was so reckless that it ignored clear evidence pointing the fallacy of Dominion conspiracy theories.

Although coverage of the case has largely focused on derogatory comments that star hosts and senior network executives have made privately — about Mr. Trump, his lawyers and each other — those remarks do not could only help Dominion’s case if they pointed to a deeper rot inside. Fox that he cynically brought up false stories about Dominion machines because his ratings were suffering.

“When I see the headlines that are mostly about Tucker Carlson or Sean Hannity, those are conversations that litigation was supposed to spur,” said RonNell Andersen Jones, First Amendment scholar and University of Utah law professor. .

“At least some of this evidence will be atmospherically significant,” added Andersen Jones. But what will be more important to the outcome of the case, she said, is “what drove the narrower decisions at the individual shows.”

Fox’s lawyers could ask the judge, for example, to block the jury from seeing most of Mr. Murdoch’s testimony on the grounds that he was the company’s president and had no direct role in making issue-level decision. And they plan to argue that Fox’s coverage of the aftermath of the 2020 election must be considered as a whole, including hosts and guests who insisted there was no evidence of widespread fraud.

And the more cases Fox’s attorneys can show in coverage where its hosts have refuted or called the allegations unproven, the stronger their case will be.

An attorney working for Fox’s defense, Erin Murphy, said Dominion didn’t “want to talk about the shows where there was a lot of commentary from different points of view.”

Especially when those shows were the ones “that had higher viewership and were the biggest audiences”, Ms Murphy added.

Dominion would have the strongest legal footing, defamation experts said, whenever it could cite specific instances where individual Fox employees responsible for a program had admitted that fraud allegations were false or had overlooked evidence that these claims – and the people making them – were unreliable.

Dominion cites only one episode of Mr. Carlson and Mr. Hannity as defamatory: Mr. Carlson’s interview with Mike Lindell, the general manager of MyPillow, on January 26, 2021, and the interview with Mr. Hannity with Sidney Powell, a lawyer who has made some of the most outrageous fraud allegations, on November 30, 2020.

Dominion’s libel claims against three much more obscure shows with much lower ratings are more substantial and widely documented: “Sunday Morning Futures With Maria Bartiromo” and the now-canceled “Lou Dobbs Tonight,” both of which aired on Fox Business in 2020; and “Justice With Judge Jeanine,” which was Jeanine Pirro’s Saturday night talk show on Fox News before the network canceled it and promoted Ms. Pirro to a regular slot on “The Five,” a weekday panel discussion .

The evidence against Ms Bartiromo is particularly damaging, legal experts have said. Dominion accused her of recklessly ignoring evidence that a key source for Ms Powell, who repeatedly appeared on Ms Bartiromo’s show, was mentally unstable – a ‘wackadoodle’ by the house’s own admission. source.

In an email, the full text of which was released last Tuesday along with thousands of pages of depositions and private messages from Fox employees, comes from a person who claims to be a technology analyst named Marlene Bourne. Ms. Powell forwarded Ms. Bourne’s email to Ms. Bartiromo on the evening of November 7, and Ms. Bartiromo forwarded it to her producer.

In the email, Ms Bourne describes numerous conspirators in a plot to discredit Mr Trump, including some who had been dead for years like Roger Ailes, the former chief executive of Fox News. She writes that she is able to “time travel in a semi-conscious state” and that when awake she can “see what others don’t see and hear what others don’t hear.” . She also says she was beheaded and “looks like I was shot in the back” once after tipping the FBI.

“If we’re really focusing on the strongest evidence,” Ms. Andersen Jones said, “it’s the wackadoodle email. Because the real question is whether you had a subjective awareness of the likely falsity of the thing that you were proposing on your show.