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.
If only I, as a part of we the people, could have standing to also sue that the actions outlined here harmed not only Dominion's reputation, but also the process of our democracy...so the conspiracy to boost the ratings of Fox News was also a conspiracy to bring down the peaceful transition of power. Seems to me the penalty for that should at least be having their license to operate pulled.
I doubt Dominion actually expects to win at the summary judgment stage although it does seem to have a shot. I suspect that Dominion smartly filed the motion because it allowed it to present all of the great statements it has unearthed in discovery in one public document, which could impact the judge and the public (potential jury pool) down the road.
I think the chances are low that the motion is actually granted, not because the facts aren’t solid, but because it’s easy to raise issues of material fact that would defeat a motion for summary judgment. That said, Dominion should take the shot because it would be a monumental win, and organizing your facts as you might later present them were there to be a trial is not a futile or wasteful exercise.
Totally agree with your analysis. I know how difficult it is to win a defamation case against a public official or public opinion -- at trial, let alone on a motion for SJ -- under the Sullivan malice standard -- and am thankful for it (I was Time Inc.'s Deputy GC for Litigation for 15 years). In this case (and in the many other cases filed by Dominion and Smartmatic) I am in the rare position of rooting for a plaintiff in a defamation case. For those interested, here is a link with a rundown on where all of the cases filed by Dominion and Smartmatic against Fox, Giuliani, Powell, OANN, Lindell (the MyPillow Guy), Newsmax and Patrick Byrne currently stand.
Wow, what a great post, Jay! It's so valuable to be able to see events from a broader perspective, and my Substack sources, like you, are excellent at giving me the tools to keep my friends and followers on Facebook aware of what's really going on! Thank you!!
Fox so called news is the definition of reckless disregard of the truth. This case will be a test of the US legal system. Personally I’m not optimistic.
Judges often punt these motions not because they lack merit in the law but because of disputes of material fact that prevent a summary ruling. I didn’t get into that in the piece because it’s not really germane to what Dominion has let the world know through this motion, but if the motion is denied, it likely would not be because the judge sided with Fox News on its legal argument that it is wholly shielded as a publisher.
It would still let them get away with the incessant lying and would send a signal to keep doing it. This is why I and many others have zero faith in the legal system which benefits large corporations and the 1% at everyone else’s expense.
Outstanding class, Jay. Unfortunately, the standards for cable networks have traditionally and legally been lower for cable media (and lower still for the web) than for broadcast TV. I think broadcast radio stations' "talk radio" programs get around the FCC standards by calling themselves, correctly but misleadingly, "entertainment," and FoxNews makes similar deceptive (in my view) distinctions between its separate news and entertainment programming. Fox's Baier and Cavuto are responsible journalists, unlike the far more influentiol Hannity, Carlson, Ingraham and other blatant propagandists.
I wonder whether this case could help break new ground in putting the news media on notice - especially those that equate propaganda with entertainment, and further blur their boundaries into actual and fact-based news - that such deceptive practices will nk longer be tolerated - unless they're willing to change their business practices or be driven out of business by lawsuits?
But wait...does this mean that they're the real "fake news"...bwahahahaha
My grandma always told me that when someone points at someone or something accusingly that there are always 3 fingers pointing at the guilty party. And everytime I hear BS this saying pops out in my head.
Thanks Jay 👏 I appreciate your explanation and it sounds pretty convincing in favor of Dominion. If they have the clout to win this then there is no good reason why the DOJ should’ve stalled this long with the information they had on tRump and his minions. He was the catalyst for everything that ensued prior to and on 1/6.
I have never watched Fox News, but I remember reading a while back that Tucker Carlson or someone of the Fox News ilk stated that he is not a journalist/newsman; he is an entertainer. If Fox maintains that position, could that have any influence on the Dominion case?
Even as an "entertainer" he could still be sued for defamation base on his intentional spreading of lies right? I mean I would assume but don't know for sure
Will Fox be forced to admit that they are an entertainment entity and not a news outlet, which is reality?? I dare to dream... Thanks for this insight!!!!
I thought about including that tidbit, but it’s not clear to me how seriously DeSantis should be taken or how far he will push that yet. There are so many bad things his administration is up to that stripping the press of its First Amendment protections under Sullivan just feels like one among many now, and that in and of itself is scary.
If only I, as a part of we the people, could have standing to also sue that the actions outlined here harmed not only Dominion's reputation, but also the process of our democracy...so the conspiracy to boost the ratings of Fox News was also a conspiracy to bring down the peaceful transition of power. Seems to me the penalty for that should at least be having their license to operate pulled.
And what about claiming we all have been harmed by intentional infliction of emotional distress?
Great idea!!
I doubt Dominion actually expects to win at the summary judgment stage although it does seem to have a shot. I suspect that Dominion smartly filed the motion because it allowed it to present all of the great statements it has unearthed in discovery in one public document, which could impact the judge and the public (potential jury pool) down the road.
I think the chances are low that the motion is actually granted, not because the facts aren’t solid, but because it’s easy to raise issues of material fact that would defeat a motion for summary judgment. That said, Dominion should take the shot because it would be a monumental win, and organizing your facts as you might later present them were there to be a trial is not a futile or wasteful exercise.
Totally agree with your analysis. I know how difficult it is to win a defamation case against a public official or public opinion -- at trial, let alone on a motion for SJ -- under the Sullivan malice standard -- and am thankful for it (I was Time Inc.'s Deputy GC for Litigation for 15 years). In this case (and in the many other cases filed by Dominion and Smartmatic) I am in the rare position of rooting for a plaintiff in a defamation case. For those interested, here is a link with a rundown on where all of the cases filed by Dominion and Smartmatic against Fox, Giuliani, Powell, OANN, Lindell (the MyPillow Guy), Newsmax and Patrick Byrne currently stand.
https://www.forbes.com/sites/alisondurkee/2023/02/15/court-lets-lawsuit-against-fox-news-move-forward-heres-where-dominion-and-smartmatics-defamation-suits-stand-now/
I find this persuasive. 👆
Ah, FOX, you grand enabler, you co-dependent player on the stage of absurdity....
They're lying.
Shrug.
Let's make some money.
Send in the clowns!
Such a great piece! You’re a national treasure. :)
Aw, thank you! I adore this community and it is an honor to write for it.
Wow, what a great post, Jay! It's so valuable to be able to see events from a broader perspective, and my Substack sources, like you, are excellent at giving me the tools to keep my friends and followers on Facebook aware of what's really going on! Thank you!!
Thank you, that means a lot to me to hear!
And, procedurally perfect with proper legal analysis of substantive law, the Sullivan case & its projeny. Good job counsel!
Fox so called news is the definition of reckless disregard of the truth. This case will be a test of the US legal system. Personally I’m not optimistic.
Judges often punt these motions not because they lack merit in the law but because of disputes of material fact that prevent a summary ruling. I didn’t get into that in the piece because it’s not really germane to what Dominion has let the world know through this motion, but if the motion is denied, it likely would not be because the judge sided with Fox News on its legal argument that it is wholly shielded as a publisher.
It would still let them get away with the incessant lying and would send a signal to keep doing it. This is why I and many others have zero faith in the legal system which benefits large corporations and the 1% at everyone else’s expense.
My understanding is that, without summary judgment, the matter will move to trial.
Perfect again Jay; the next matter is getting a Trial date as Plaintiff is ready to proceed.
Their disregard for truth went far beyond recklessness. It was knowing, deliberate, and intentional.
Outstanding class, Jay. Unfortunately, the standards for cable networks have traditionally and legally been lower for cable media (and lower still for the web) than for broadcast TV. I think broadcast radio stations' "talk radio" programs get around the FCC standards by calling themselves, correctly but misleadingly, "entertainment," and FoxNews makes similar deceptive (in my view) distinctions between its separate news and entertainment programming. Fox's Baier and Cavuto are responsible journalists, unlike the far more influentiol Hannity, Carlson, Ingraham and other blatant propagandists.
I wonder whether this case could help break new ground in putting the news media on notice - especially those that equate propaganda with entertainment, and further blur their boundaries into actual and fact-based news - that such deceptive practices will nk longer be tolerated - unless they're willing to change their business practices or be driven out of business by lawsuits?
I sure hope that Dominion does prevail in the end ... & that Fox "News" has to fork over gobs of $$ !!!
But wait...does this mean that they're the real "fake news"...bwahahahaha
My grandma always told me that when someone points at someone or something accusingly that there are always 3 fingers pointing at the guilty party. And everytime I hear BS this saying pops out in my head.
Thanks Jay 👏 I appreciate your explanation and it sounds pretty convincing in favor of Dominion. If they have the clout to win this then there is no good reason why the DOJ should’ve stalled this long with the information they had on tRump and his minions. He was the catalyst for everything that ensued prior to and on 1/6.
I have never watched Fox News, but I remember reading a while back that Tucker Carlson or someone of the Fox News ilk stated that he is not a journalist/newsman; he is an entertainer. If Fox maintains that position, could that have any influence on the Dominion case?
Even as an "entertainer" he could still be sued for defamation base on his intentional spreading of lies right? I mean I would assume but don't know for sure
I bought a baseball cap with the slogan, "Make Lying Wrong Again" a few months ago. Reactions when I wear it in public are interesting.
Does Dominion need a few dollars to pay court/lawyer fees?
I think they have significant resources to fight this case.
Will Fox be forced to admit that they are an entertainment entity and not a news outlet, which is reality?? I dare to dream... Thanks for this insight!!!!
They did actually admit this in another context in another matter.
Wishing it could be heard by their devoted viewers!
I believe that's already been established. They claim their status as an entertainment entity is what allows them to lie constantly.
Here in Florida, the Governor wants to make it easier for people and entities to sue the news media. Somebody should ask him about this case.
I thought about including that tidbit, but it’s not clear to me how seriously DeSantis should be taken or how far he will push that yet. There are so many bad things his administration is up to that stripping the press of its First Amendment protections under Sullivan just feels like one among many now, and that in and of itself is scary.
Absolutely. It’s pretty horrifying down here.
TRUTH!
If the case goes against Fox, are they likely to appeal? Do you think this would have any traction in the current politically motivated Supreme Court?
It almost certainly would be appealed to the 2nd Circuit.