Did Fox News Act with Actual Malice? It Sure Seems Like It.

Image courtesy of Fox News

The $1.5 billion (yes, billion) defamation lawsuit filed by Dominion Voting Systems against Fox News has now reached a critical stage, with the parties both filing for summary judgment in advance of trial.

So what exactly is “summary judgment?” In plain English, it means a motion to have the judge decide a matter from the bench rather than have it go to trial before a jury. Dominion seeks a knock-out punch on the question of whether Fox News is liable for its false statements about Dominion’s voting machines in connection with the 2020 election, without regard yet to the possible size of the damages. It wants the court to look at the case and rule that there are no “genuine issues of material fact” in dispute—for example, that there’s no doubt about what was said and done by Fox News leadership and its hosts, and based on that Dominion should prevail. 

After months of discovery, Dominion has amassed a treasure trove of evidence, including internal communications by key figures at Fox News (think Rupert Murdoch, Tucker Carlson, Laura Ingraham, Sean Hannity) that fairly plainly show that Fox News knew that the statements made by guests and hosts on its broadcast about Dominion machines and a stolen election were false. And yet it continued to promote those guests and repeat their statements anyway. In a case of defamation like this one, the defendant’s knowledge of the falsity of its claims matters a great deal: The standard for whether a media outlet can be held liable for defamation is quite high and involves something the Supreme Court laid out decades ago called “actual malice.” Has that standard been met here?

Let’s open our textbooks to the year 1964 and briefly review what “actual malice” means according to SCOTUS, at least back when it was more sane and reasonable. Then let’s sift through the rich dirt Dominion has unearthed from within the dank caves of Fox News and apply it to this standard. You’ll see why the network should be worried that it might actually lose the liability part of this case—maybe even on summary judgment long before a trial.

Actual Malice

Legal lesson time! The grandpappy of cases when it comes to liability of a publisher for a false statement is New York Times v. Sullivan. That case, which was unanimously decided, broadly protects publishers by extending First Amendment protections whenever they print about public figures, even when the statement is false. So long as the publication does not act with what it called “actual malice” toward the public figure, no libel case may proceed.

Before we get into what “actual malice” means, the facts of the case are fascinating and worth a look. It was the 1960s, and the Civil Rights movement was in full swing. A group of progressives ran an ad in the New York Times to raise funds for civil rights leaders, decrying a “wave of terror” by police. The ad described an incident in Montgomery, Alabama, but it got a couple of facts wrong, including a claim that the dining hall where protestors had gathered had been padlocked to “starve them into submission.” One of the officers in charge of the police there sued the paper for printing incorrect facts in the ad. Though he was not mentioned by name, Sullivan claimed his reputation in the community had been damaged. An Alabama court agreed and ordered the New York Times to pay him $50,000.

The paper argued on appeal that it had no way to fact check every single ad, and that it had not intended to harm Sullivan by printing it so it should not be held accountable. The Supreme Court agreed and reversed the award. It set out a new and important standard: In order to prove libel against a newspaper, a public official must show that the publisher acted “with ‘actual malice’– that is, with knowledge that it was false or with reckless disregard” for truth. The Court emphasized America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open”—a value that it felt was more important than occasional, unwitting factual errors that might damage officials’ reputations.

Courts have since extended the reasoning in Sullivan beyond public officials to include public figures and even public-facing entities like Dominion. For nearly sixty years, the very high “actual malice” bar has indeed supported “uninhibited, robust, and wide-open” media coverage. But now the Dominion case against Fox News is testing the limits of that standard. 

It’s fair to say the Supreme Court in 1964 could not have imagined a major “news” network today intentionally feeding the kind of lies and conspiracies that Fox News did in the wake of the 2020 election. Dominion’s goal is to prove to the judge, based on the undisputed facts, that key leaders at Fox News acted with knowledge of the falsity of the network’s claims, or at least with utter reckless disregard for the truth.

So what evidence did Dominion submit? Here’s where it frankly gets quite shocking, even for Fox News. Dominion submitted a 192 page brief, so in the interest of space, let’s just highlight the real whoppers.

They knew it was all lies

One of the chief proponents after the 2020 election of a conspiracy around Dominion voting machines was lawyer Sidney Powell. You might remember that Powell gave a rather unhinged press conference—the same one where what appeared to be Rudy Giuliani’s hair dye was famously running down his face—in which she laid out parts of an alleged conspiracy involving Venezuelan software and Dominion voting machines. Fox News leaders privately had not been impressed with what Powell had already been saying leading up to that conference.

“Sidney Powell is a bit nuts,” said Laura Ingraham to Tucker Carlson and Sean Hannity on November 15, 2020. “Sidney Powell is lying,” Carlson said to a network producer a day later. “Really crazy stuff,” remarked Rupert Murdoch after Powell’s and Giuliani’s press conference. “That whole narrative that Sidney was pushing, I did not believe it for a minute,” admitted Hannity. 

And it wasn’t just Powell. In the private words of its employees, Fox News knew that the claims and the guests they had on their network making them were, to cite just a few:

“ludicrous” (Tucker Carlson 11/20/20)

“totally off the rails” (Tucker Carlson 12/24/20)

“Fucking lunatics” (Sean Hannity 12/22/20)

“nuts” (Dana Perino, 11/16/20)

“complete bs” (producer John Fawcett to Lou Dobbs, 11/27/20)

“kooky” (Maria Bartiromo re email from Sidney Powell, 11/7/20)

“MIND BLOWINGLY NUTS” (Raj Shah, SVP, 11/21/20)

Fox News political correspondent Bret Baier stated privately two days after the election, “There is NO evidence of fraud. NONE.” And after Fox personality Maria Bartiromo posted unfounded allegations of vote “dumps” on social media, Baier warned, “We have to prevent this stuff…We need to fact check.”

Despite knowing that Powell and other guests on the network were off their rockers and lying, Fox News continued to push out the same false narrative as their guests had. Carlson spoke of “the single greatest crime in American history. Millions of votes stolen in a day. Democracy destroyed.” Bartiromo hosted Powell on her show on November 8, 2020, inviting her to spread her conspiracies. “I know there were voting irregularities. Tell me about that,” she urged, knowing Powell would respond with disinformation and falsehoods about Dominion. 

Indeed, when Rupert Murdoch asked internally whether it was “unarguable that high-profile Fox voices fed the story that the election was stolen and that January 6 was an important chance to have the results overturned,” Fox executives responded with 50 examples of that happening.

Protecting the Brand

So why would Fox News feed the Big Lie when they knew it was false? The answer is as simple as it is cynical: money. Specifically, Fox News continued the falsehoods in order to keep its viewers from switching to a more Trump-friendly network.

Here’s the backstory: After Fox News correctly called the state of Arizona for Joe Biden, its viewers revolted and the “network [was] being rejected” by the Republican base. Their ratings were cratering. Carlson remarked, “I’ve never seen a reaction like this, to any media company. Kills me to watch it.” A top executive lamented that producers who allowed the call for Arizona did not understand “the impact to the brand and the arrogance in calling AZ” and found it “astonishing” given that it was the producer’s job to “protect the brand.”

So protect the brand they did. Starting on “Day One” as one top executive termed it, Fox News made an explicit decision to woo back their viewers: “we will highlight our stars and plant flags letting the viewers know we hear and respect them.” An example of this in action came on November 9, when Neil Cavuto cut away from false statements being made by press secretary Kayleigh McEneny. “Whoa whoa whoa, she’s charging the other side as welcoming fraud and illegal voting, unless she has more details to back that up, I can’t in good countenance continue to show you this,” he said to viewers, and “that’s an explosive charge to make.” Immediately after this, senior management held a discussion about the “Brand Threat” posed by Cavuto’s decision and they doubled down on the false Dominion stories.

By November 11, Sean Hannity recognized that the “Dominion fraud narrative” would play a role in winning back viewers and thereafter became a focal point of discussion at multiple shows on Fox. Lamented one Fox News producer, who was responsible for overseeing Laura Ingraham’s show, “This Dominion shit is going to give me a fucking aneurysm—as many times as I’ve told Laura it’s bs…” (Note that more was said in the briefs about both Hannity and Ingraham’s roles and statements, but those words remain redacted from the public version of the brief.)

When one of Fox News’s own reporters publicly fact-checked Hannity and Carlson about Dominion by posting a tweet that noted top election officials had found no evidence of voting system errors or compromises, Carlson was livid. He told Hannity, “Please get her fired. Seriously…What the fuck? I’m actually shocked. It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.”

There’s lots more evidence, but you get the gist. Fox News knew that what its guests were saying about Dominion and the election was patently false and unsupportable, but they knowingly continued to feed the false narrative in order to keep their ratings high. And that sounds like a pretty decent reason for a court to find that the Sullivan case offers Fox News no protection.

I should note that Dominion has to prove its case for liability by “clear and convincing evidence,” which is the standard for defamation liability under New York law. This generally lands Dominion somewhere above the “more likely than not” standard for most civil cases but below the “beyond a reasonable doubt” of criminal ones. From what I’ve seen, it will be hard for Fox News to argue that it was acting simply to foster a robust and healthy debate. There was a concerted, false, and defamatory disinformation campaign at Fox News stretching out for weeks in order to gain back an audience that had abandoned the network for once daring to speak the truth.

In short, this was actual malice if I’ve ever seen it anywhere within a media company. It is not just a single example of it but scores of damning texts and emails. We’ll see if it’s enough for the court to hold in Dominion’s favor as a matter of law.