A Delaware judge declined to dismiss Dominion Voting Systems’ $1.6 billion libel suit against Fox News on Thursday, December 16, 2021 (story here). The ruling doesn’t mean Dominion will prevail in the lawsuit, nor say anything about potential damages if it does.
The judge didn’t decide whether Dominion’s accusations against Fox News are true, or that Fox News is liable for damages if they are, but only means the case can go to trial. Fox News had brought a motion to dismiss the lawsuit under a court rule allowing judges to toss out legal complaints lacking a sufficient basis to justify a trial. This procedure protects defendants from meritless lawsuits without having to run up big defense bills.
Although news reports of today’s ruling don’t indicate why a Delaware state court has the case, that’s probably because Fox News is incorporated there. Normally, you would sue a corporation in its “home” state, which the state issuing its charter, regardless of where its headquarters or main operations are. A majority of large U.S. businesses adopt Delaware as their corporate “home” (for reasons why, see article here).
Dominion alleges Fox News and its on-air personalities broadcast malicious lies about the company, falsely asserting among other things that its voting machines switched Trump votes to Biden, and that has suffered damage to reputation and loss of business as a result. Tucker Carlson, Jeanine Pirro, Sean Hannity, Maria Bartiromo, and Lou Dobbs are among the on-air personalities mentioned in the judge’s ruling (and, I assume, the lawsuit).
Lawyers for Fox News claim it was simply reporting news. However, the judge ruled that Dominion offered sufficient facts which, if true, call that into question. On a fundamental non-legal level the question is whether Fox News was broadcasting news or false propaganda. The hosts invited people like Rudy Giuliani, Sidney Powell, and Mike Lindell onto their shows to promote their conspiracy theories, which in Dominion’s case were not only false but downright ludicrous. (Despite that, millions of Fox viewers believed them.)
Giuliani and Powell, both lawyers, now face professional sanctions for filing lawsuits based on similar lies. They and other lawyers for the Trump campaign filed dozens of frivolous lawsuits that, without exception, were summarily dismissed by courts, many by Republican judges, some appointed by Trump.
The very notion of suing a news organization or journalists for simply reporting a story is inherently troubling, although news reporters can be liable for recklessly false reporting that harms someone. It’s harder for public figures to sue because they not only have to prove the statements were false, but also have to prove “actual malice.” This is a substantial bar against defamation claims. One of the issues in Dominion’s lawsuit will be whether the company is a “public figure,” but even if they are, the judge’s ruling today suggested Dominion may be able to prove “actual malice” by Fox News.
Even so, Dominion’s lawsuit faces a steep uphill climb. It still has to prove its allegations in court, show actual harm to its reputation and business, and win a damage award. Then, it’ll have to convince appellate courts, possibly including the Supreme Court, that letting the award stand won’t “chill” legitimate news reporting.
To me, the lawsuit against Fox News is less troubling, because I don’t see them as a legitimate news organization. Their operations include some news reporting, although with a strong partisan slant, and not on a par with MSM (mainstream media) for journalistic objectivity or integrity. But they’re best known (and most widely watched) for their talk shows, which are highly partisan. Fox News is widely derided as the “propaganda arm of the Republican Party,” even though it’s not part of the Republican Party, and I consider that an accurate description of what they really do.
For a more detailed discussion of today’s ruling, go here.
Should Fox “News” go for a name change?
Yes. Rename to Faux Facts or Fox Faux Facts
FFF of Fox F*cks the Facts so you don’t have to.
What is a news organization. Even Pravda when it was under Stalin was a news organization. Of course the paper did a lot of propaganda with no competition.
Fox does news, the New York Times does news, even comedians on the comedy channel and on line do news.
It would also be a good question in whether a corporation can have malice toward another corporation and whether the receiving corporation can feel malice. Corporations are created entities. The judge probably called this wrong and Fox can appeal that decision or let it go to court.
Dominion sells voting machines. Which are unnecessary as a voting box and humans an count votes in various ways. Sure there can be ballot stuffing, but that can be observed at the box, such ballot stuffing of the machine may not be observed, errors can go unobserved, and transparency can only be gained with paper ballots that can be counted by human beings.
“Malice” is a legal term of art referring to an additional element that a “public figure” (also a legal term of art) must establish to recover in a defamation suit. That’s the New York Times v. Sullivan case. Fox News and other defendants propagated statements Dominion machines switched Trump votes to Biden. The defendants would be liable for loss of business only where Dominion customers switched to hand counting or some other method for that reason. Even if they defamed Dominion, they would not be liable where customers dropped Dominion for unrelated reasons (such as a preference for another voting method not prompted by the defamatory remarks). Even paper ballots are machine-counted, and I don’t think you’ll see any large jurisdiction switch to counting by hand, because that would be very expensive, could take weeks, and would be more error-prone (due to human error; machines are more consistent and accurate than humans).