By: Alexandra Evarts
In the weeks after former President Donald Trump’s loss in the 2020 election, Fox News perpetuated the narrative that there was rampant voter fraud in the election. In particular, Fox News hosts spun this narrative around one culprit: Dominion Voting Systems (“Dominion”), a creator of election technology used in the 2020 election. Now, Dominion Voting Systems has sued Fox News Corporation (“Fox”) for defamation, claiming that Fox spread false claims of widespread vote-rigging in the 2020 presidential election. Judge Eric Davis of the Delaware Superior Court just recently heard oral arguments on a motion for summary judgment and ruled on Friday, March 31, that the case will go to trial. The case could significantly alter the national conversation around fake news and First Amendment rights.
On November 8, 2020, after President Trump lost the 2020 election, Fox News Corporation started to see a familiar viewership trend: a decline in ratings and viewership as a result of a win from the democratic party candidate. At first, Fox News executives were not concerned, as this was par-for-the course. However, after several weeks of low ratings, and a recognition that many viewers had started to migrate towards Newsmax, a far-right news channel pushing election conspiracy theories, the direction from Fox News executives started to change. Based on correspondence pulled from thousands of deposition documents, Fox News executives urged hosts to appease viewers by covering “voting irregularities”. For example, when Fox News correspondent Kristen Fisher fact-checked a Trump news conference spouting conspiracy theories about a stolen election, she was reprimanded for not “respecting” the Fox audience and was later taken off the air. Other Fox News Hosts, including Lou Dobbs, floated unfounded rumors about the inaccuracy of election technology provided by Dominion Voting Systems. The Fox News host claimed that the voting systems “were designed to be inaccurate,” while simultaneously expressing his concerns about the veracity of the statements off-air. Nevertheless, ratings went up as these unsupported claims were made on air, and hosts were encouraged to perpetuate them across the network. After becoming implicated in these election fraud narratives, Dominion Voting Systems directly alerted Fox News anchors and executives to information that disproved the accusations, but Fox continued to report on the story without referencing Dominion’s emails proving otherwise.
In response, Dominion Voting Systems filed a $1.6B lawsuit against Fox News in the Delaware Superior Court, alleging that Fox News personalities including Tucker Carlson, Jeanine Pirro, Sean Hannity and their on-air guests knowingly spread lies about fraud in the 2020 election that hurt Dominion’s business. On March 21, 2023, Fox News and Dominion Voting
Systems made their arguments for and against a motion for summary judgment. On Friday, March 31, the judge denied Fox News’ motion for summary judgment.
Fox News’ key argument is that they were merely reporting on what President Trump and other elected officials were saying about election fraud and Dominion machines, not that Fox News was endorsing those falsehoods. The First Amendment, Fox argues, allows news organizations to cover topics and statements made by elected officials, even if they know those statements are false. Additionally, Fox lawyers argued that top Fox News executives were not directly involved in the coverage of false claims of voter fraud enough to justify holding the company liable for defamation. In response, Dominion presented thousands of documents and deposition testimony showing how Rupert Murdoch, the Chairman and CEO of Fox, and other top Fox News executives, were directly involved in influencing how voter fraud claims were presented on the network. In denying Fox News’ motion for summary judgment in late March 2023, the judge found that Dominion proved that Fox aired false information about the company on its broadcast, but determined that the issue of whether Fox knowingly published false information about Dominion’s voting machines needs to be determined by a jury.
For Dominion to win, experts argue, Dominion must convince the jury of one key thing: “that Fox News either knowingly broadcast false information or was so reckless that it overlooked obvious evidence pointing to the falsity of the conspiracy theories about Dominion.” Based on the deposition documents and testimony that has already been made public, it seems clear that Dominion has an “exceptionally strong” case against Fox News.
While there are several milestones to reach before we have a clear answer on Fox’s liability in defaming Dominion Voting Systems, one thing is clear: if Dominion does prevail, it will significantly alter the national conversation around fake news. While Fox will argue that a loss will suppress free speech rights across the board, a win for Dominion will send a clear message that free speech rights do not protect those who knowingly spread disinformation and conspiracy theories.
Student Bio: Allie Evarts is a second-year student at Suffolk University Law School. She is a staff writer for the Journal of High Technology Law. Allie worked at two technology startup companies prior to law school, and received a Bachelor of Science Degree in Environmental Science, with a concentration in Natural Resource Planning and Policy, from the University of Vermont.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
