Fox News Faces Uphill Battle Fighting Defamation Suit from Dominion Voting Systems

Last Friday, Dominion Voting Systems filed its long-anticipated defamation action against Fox News, claiming damages of $1.6 billion. That follows a $2.7 billion claim made against the broadcaster in February by Smartmatic, another voting machine company falsely maligned on the air by the network and its segment hosts. Fox has filed four motions to dismiss the Smartmatic suit.

The case against Fox News is fairly strong, and Fox is clearly worried.

Since the threat of legal action began, the network undertook some highly public efforts to undo the damage inflicted by the likes of hosts Jeannine Pirro, Maria Bartiromo and Lou Dobbs. The network even fired Dobbs, one of its most popular personalities, whose on-air statements were some of the most legally problematic.

To understand the pickle Fox is in, it's worth walking through exactly what defamation and is how it is proven. Under the common law (i.e. the set of principles passed down over the centuries from England and developed more fully by our courts here), defamation traditionally has four elements:

1) a false statement purporting to be fact;

2) publication or communication of that statement to a third person;

3) fault amounting to at least negligence; and

4) damages, or some harm caused to the person or entity who is the subject of the statement.

The last element is often the most difficult to prove because it requires the plaintiff to prove that what was said actually was the cause of the injury that plaintiff suffered. But in the case of a defamatory statement about a business, damages are presumed in most jurisdictions and don't have to be proven, other than to what extent.

But U.S. law adds another wrinkle, courtesy of our Supreme Court. When the plaintiff is a "public figure," a plaintiff further needs to prove that the defendant acted with "actual malice"—meaning with "knowledge that the information was false" or at least "with reckless disregard of whether it was false or not." Someone is a "public figure" if they are "a public official or any other person pervasively involved in public affairs" or if they have "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved."

Most are familiar with the fact that the "kraken" team (Sidney Powell, Mike Lindell, Lin Wood, and Rudy Giuliani, some of whom are also named in different suits) spread lies about Dominion and Smartmatic being Venezuelan companies that helped Hugo Chavez steal elections in that country. What isn't as well known to non-Fox watchers is that the network proceeded to give these conspiracies a platform when these individuals were invited as guests to speak about them, amplifying the false claims and giving them a tacit nod. For example, according to a summary report by the Washington Post,Jeannine Pirro said this on November 21, 2020:

"The president's lawyers [are] alleging a company called Dominion, which they say started in Venezuela with Cuban money and with the assistance of Smartmatic software, a back door is capable of flipping votes. And the president's lawyers alleging that American votes in a presidential election are actually counted in a foreign country. These are serious allegations, but the media has no interest in any of this. But you and I do, as we should, because 73 million Americans voted for Donald Trump."

Fox News and Pirro likely will argue that she was merely repeating a false allegation for its newsworthiness, and not endorsing it directly. Plaintiffs will counter that she was repeating a series of lies and implicitly stating they were true but being ignored by "the media."

Other Fox News hosts played the same type of game. Host Maria Bartiromo said this on November 15, 2020:

"Look, I want to show this graphic of the swing states that were using Dominion and this software, the Smartmatic software. … The voting machines were used, Dominion voting machines were used in Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin. And I have a graphic showing the states where they stopped counting, which I thought was also strange — to stop counting in the middle of election night."

Bartiromo implies that the states "stopped counting" on election night, which isn't true, and that this had something to do with Dominion Voting Machines and Smartmatic software, which is also untrue. She then drew a correlation to two untrue things by way of a "graphic." This showed, again, a disregard for the truth that could rise to actionable defamation.

In other instances, Fox News hosts themselves appeared to spread the lies directly. Lou Dobbs is the clearest case of this. For example, Dobbs said to his viewers on November 18, 2020:

"I am alarmed because of what is occurring in plain sight during this 2020 election for President of the United States. The circumstances and events are eerily reminiscent of what happened with Smartmatic software electronically changing votes in the 2013 presidential election in Venezuela."

That statement is patently false and defamatory because Smartmatic never changed votes in the presidential election in 2013 in Venezuela. It was a lie.

And per an earlier report by the Washington Post, Dobbs also said this on November 12, 2020:

"It's stunning. And they're private firms, and very little is known about their ownership, beyond what you're saying about Dominion. It's very difficult to get a handle on just who owns what and how they're being operated. And by the way, the states, as you well know now, they have no ability to audit meaningfully the votes that are cast because the servers are somewhere else and are considered proprietary, and they won't touch them. They won't permit them being touched."

Dobbs knew, or recklessly disregarded the fact, that the states could readily perform audits of the paper ballots, just as they eventually did in swing states like Georgia, Michigan and Wisconsin. Further, the ownership of the companies was a matter of public record and not in dispute.

Fox News may have reviewed all of the statements and decided, without having to think too hard about it, that Dobbs had crossed well past the line and had no good defense for his statements. His firing was the clearest indication that Fox News wanted to staunch the bleeding.

We should expect that Fox News will argue that Dominion and Smartmatic are "public figures"—just as Sidney Powell's lawyers already have—entitling Fox News to a higher threshold of proof of defamation, i.e. that the statements were made with "actual malice."

But even if the court agrees that these companies are public figures, for example by holding that they lobby politicians for business and are therefore in the public eye already, Fox News still has a problem: Lou Dobbs appears to easily meet the standard of making numerous statements with reckless disregard for whether they were false or not.

For its part, Fox News said in a statement:

"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."

It's unclear how Fox News will successfully explain why they let that go on for so long, and it leaves Fox News badly on the hook for defamation.