Were Fox News‘ election lies protected by the First Amendment? Salon’s analysis: That’s not the real issue
Unless the two parties reach a last-minute settlement — which seems unlikely — Fox News and Dominion Voting Systems are scheduled for their first day in court Monday. Delaware Superior Court Judge Eric Davis is expected to finish the jury selection process in Dominion’s $1.6 billion defamation lawsuit against Fox News before hearing opening statements later in the day.
Offering a blizzard of damning evidence in the form of emails, texts and phone calls exchanged among high-profile Fox News figures, Dominion has accused the long-dominant conservative infotainment channel of knowingly perpetuating false claims that the 2020 election was stolen — and, more importantly, that Dominion somehow aided this effort through the nefarious use of its technology. Dominion said these false claims have cost the company major contracts with state legislatures who were persuaded not to purchase or use its voting machines.
Dominion’s case is straightforward: Fox „manufactured a storyline about election fraud“ in which Dominion was made the „villain.“
Dominion laid out its claims in a 141-page complaint, which argues that Fox News hosts not only knowingly promoted and endorsed false claims that the election was stolen in 2020 but also selected high-profile guests who the network knew would parrot that claim, giving them near-boundless airtime for outrageous allegations that Dominion had rigged the election by manipulating vote counts.
Furthermore, Fox insiders knew or at least suspected that these claims were untrue, according to the lawsuit: „Fox witness after witness has admitted under oath that they have not seen evidence proving Dominion stole the 2020 Presidential Election or that they do not believe Dominion did.“
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„Not a single Fox witness has presented evidence that Dominion rigged the 2020 election because no evidence, documentary or otherwise, suggests it.“
Fox News, on the other hand, has repeatedly claimed that it was doing journalism. The network’s position is that even though some anchors and guests promoted false claims of election fraud, which many people at Fox News understood to be baseless, the company did its ethical due diligence by giving airtime to Dominion spokesman Michael Steel, who disputed the claims.
„Fox News Media is proud of our 2020 election coverage, which stands in the highest tradition of American journalism, and will vigorously defend against this baseless lawsuit in court,“ the company said in a statement.
When Dominion’s filing dropped in February, Fox News hit back with a longer and broader statement, which it has persistently requested that journalists include in any and all coverage of the Dominion suit. Editors at Salon, for example, have received such requests on numerous occasions.
„There will be a lot of noise and confusion generated by Dominion and their opportunistic private equity owners, but the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan,“ the company said.
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Fox Corporation chair Rupert Murdoch — who is likely to appear as a witness, as is Fox News CEO Suzanne Scott — has admitted that some Fox News hosts pushed false claims, but has argued that outrageous allegations made by guest commenters were simply the free expression of opinion, and cannot be attributed to Fox News itself.
This suit has been in process since 2021, but most recently Judge Davis set Fox News‘ lawyers back on their heels by ruling that one of their primary defenses — that the allegations of election fraud were newsworthy because they came from then-President Donald Trump — was too weak a claim to be argued in court.
That move came after Dominion released a flurry of emails and text messages making clear that high-profile Fox News anchors and top executives knew the guests they hosted had no evidence of election fraud and that many people inside Fox News believed the network had gone too far.
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Notably, when Davis greenlit the case to proceed to trial, he also ruled that Fox News‘ claims of election interference by Dominion were to be treated as totally false by jurors. This could protect the jury pool from having to give any weight to the validity of groundless conspiracy theories. He also allowed lawyers to ask potential jurors whether they were Fox News viewers, although not how they voted.
The most dramatic setback for Fox News leading into Monday was the penalty they received from Davis, who ruled that Fox lawyers had withheld evidence and slapped the company with a fine.
A flood of emails, texts and deposition statements regarding the Big Lie promoted by Trump and his allies — exchanged between Fox News hosts and high-ranking executives — were revealed in early March as part of Dominion’s suit.
