Dominion And Fox Offer Dueling Views Of Defamation Law In Latest Filings – Deadline

Dominion Voting Systems and Fox have offered ambiguous views on the defamation law in their recent filings as each side seeks a summary judgment that could forestall a scheduled trial in April.

The case has garnered significant attention in recent weeks, as Dominion’s files revealed a wealth of text messages, emails and deposition logs showing Fox figures did not believe Donald Trump’s allegations of voter fraud, but did not dissuade network personalities and guests to reinforce claims that votes were rigged to ensure Joe Biden wins the election.

The filings from Dominion (read them here) and Fox News and Fox Corp. (read them here and here) provide insight into how they will argue their summary judgment motions in Delaware Superior Court later this month. Judge Eric M. Davis has scheduled the hearing for March 21. If he denies both motions for summary judgment, a jury trial is scheduled to begin in April.

In its brief, Fox’s legal team argued, “As long as the press makes it clear that the allegations are only allegations, they are free to express their opinion that the allegations are “credible” and merit investigation (as do some Fox News anchors and other networks has done), as well as being free to voice its opinion that the allegations are not credible (as other Fox News hosts and other networks have done).”

“Dominion does not even attempt to argue that a reasonable viewer would fail to understand that the vast majority of the statements it contests were ‘mere allegations’ by the President and his attorneys, not established facts about Dominion,” Fox’s attorneys wrote News . “Neither could it.”

In its legal filings and press statements, Fox News has defended its coverage, arguing that it was undeniably newsworthy: an incumbent president’s allegations of voter fraud. In their most recent brief, their attorneys claimed that if “the press had an obligation to suppress the true fact that the incumbent President of the United States is accusing Dominion and others of massive voter fraud. If that were the law, then not only has virtually every news outlet in the nation repeatedly defamed Dominion.”

For their part, Dominion’s attorneys alleged that Fox was attempting to create a “radical new rule of complete immunity for knowingly publishing false, newsworthy allegations” and maintaining the careful balance struck against Sullivan since the New York Times between protecting the liberty of speech and protecting that hard-earned reputation.”

“Media companies are always allowed to report the truth, including reporting false claims while declaring that the allegations are falseand Dominion was unsure that the many media outlets did just that in 2020,” Dominion’s legal team wrote.

“A publisher who knows the truth can still publish the allegations, but has to tell his audience the truth can still publicize the allegations, but must tell the truth to its audience—that the allegations are false—or face defamation liability. This isn’t Dominion rewriting First Amendment law; it is the bedrock of decades of First Amendment precedent.” [The italics were included for emphasis by Dominion’s lawyers].

Dominion’s attorneys also argued that they had firmly established that Fox knew the statements were false, or that they acted in reckless disregard for the truth, which is the threshold plaintiffs must prove in a case like this to win a verdict for defamation. “The wealth of real-time information shows why each person acted with actual malice,” the attorneys wrote, noting that 19 of 20 broadcasts cited in their complaint took place after they sent a “setting the record straight” email , in which they informed Fox News staff of the untruth of the vote-rigging claims.

“Some shows stopped airing the allegations because they knew they had to ‘tell the truth,'” argued Dominion’s attorneys. Host Laura Ingraham, they wrote, “admitted in her testimony that as of November 12, she ‘made the decision not to disseminate Dominion’s false allegations.'”

Dominion also argued that statements by top executives such as Rupert Murdoch, who called the allegations of voter fraud “really crazy stuff” and testified that he never believed Dominion rigged the election, are relevant to proving actual malice .

“Courts have determined that if an editor or executive responsible for a publication knows it is false or seriously doubts its truth, the actual malice of the editor or executive is sufficient for liability,” the company’s attorneys wrote.

However, Fox News maintained that Dominion “must show real malice to the people actually responsible for the contested statements.”

“According to Dominion, as long as no one in the ‘chain of command’ — from the production level producers to the CEO to the most senior executives of the publication’s parent company — does not believe anyone in what one of the organization’s shows is called, a media organization acts with the requisite real malice it, even if that person played no role in the writing, editing, or release of that statement, or even knew it existed,” the Fox attorneys wrote. “Hence, in Dominion’s view, Fox News acted with genuine malice when Lachlan Murdoch did not believe something he did not know Sidney Powell was saying on Lou Dobbs’ show.”

Dominion’s legal team wrote that there is evidence of instances where every “Fox host and producer also acted with actual malice.” As an example, they claimed that in the affidavit, Dobbs admitted “that by March 13, [2020] he had never seen ‘verifiable, tangible support’ for the allegations against Dominion.”

The company also drew attention to statements by David Clark, a Fox News executive, who claimed responsibility Sunday Morning Futures with Maria Bartiromo And Justice with Judge Jeanine. They pointed to part of his testimony when asked, “Up until November 6, sir, you knew that false conspiracy theories were circulating in general, correct?” “I’ll say yes,” he replied. “Nevertheless, Clark allowed Bartiromo’s show to air the next day,” Dominion’s attorneys wrote. “By November 14, Clark had received emails from Dominion so many times that he joked they were ‘tattooed’ onto his body.”