Fox News and a voting machine company that claims the conservative network defamed it by amplifying baseless allegations of fraud following the 2020 presidential election faced off in a courtroom Tuesday during a key hearing over whether journalists have a responsibility to be cautious with explosive and implausible allegations.
Denver-based Dominion Voting Systems argued that Fox recklessly repeated false accusations from supporters of former President Donald Trump that its machines and the software used were responsible for Trump’s 2020 election loss. Documents released during the lawsuit have shown that top Fox executives and personalities didn’t believe the claims but aired them anyway.
“There was a deliberate decision by those responsible for the broadcasts … to let the story be out there,” Dominion attorney Rodney Smolla said, adding that Fox News was desperate to win back viewers infuriated that the network had correctly called Arizona, a key battleground state, on election night for Joe Biden. “What they did to get viewers back was start this new narrative that the election had been stolen and that Dominion was the thief.”
But Fox contended it was simply reporting on newsworthy allegations — a sitting president’s claim that the election was being stolen from him.
“We never reported those to be true,” Fox lawyer Erin Murphy said. “All we ever did was provide viewers the true fact that these were allegations that were being made.”
The arguments, which are scheduled to continue Wednesday, came during a summary judgment hearing as both sides in the case asked Delaware Superior Court Judge Eric Davis to find in their favor ahead of an April 17 trial date. It’s unclear when Davis might issue a ruling.
Davis told lawyers for both sides he hasn’t made up his mind.
“I need to be educated,” the judge said as the hearing began. “I haven’t pre-decided this.”
The hearing followed the filing of a separate lawsuit Monday by Fox News producer Abby Grossberg claiming that the network pressured her to give misleading testimony during her deposition in the Dominion case.
A producer on Fox’s Tucker Carlson Tonight show who previously worked for Maria Bartiromo’s show, Grossberg contends that Fox attorneys advised her against hiring a personal attorney for the case and implied that she should not be “too candid” in her depositions.
“Ms. Grossberg convinced herself that discretion would be the better part of valor in this instance, and decided she would follow the directions of the attorneys who claimed they represented her best interests in connection with her deposition and kept her truth to herself,” Grossberg’s lawsuit contends.
Fox countered with its own lawsuit, trying to bar Grossberg from disclosing confidential discussions with Fox attorneys.
“Her allegations in connection with the Dominion case are baseless, and we will vigorously defend Fox against all of her claims,” the network said in a statement about Grossberg’s case.
Tuesday’s hearing was perhaps the most significant court action to date in a lawsuit that already has embarrassed Fox by revealing its personalities’ private disdain for former President Donald Trump and illustrating how political pressures can inform its coverage. The case also holds the potential for redefining libel law in the U.S.
Dominion, which sells electronic voting hardware and software, contends that some Fox News employees deliberately amplified false claims by Trump allies that Dominion machines had changed votes in the 2020 election and that Fox provided a platform for guests to make false and defamatory statements about the company.
Dominion’s attorney began Tuesday’s arguments by rejecting Fox’s claim that it should not be held liable for reporting what Trump supporters were saying.
“If you repeat or publish a defamatory statement from someone else, you adopt it as your own,” Smolla said.
He added that Fox’s reputation gave statements being made by Trump allies Sidney Powell, Rudy Giuliani and Mike Lindell “gravitas.” Smolla said Fox employees did not engage in neutral reporting, but instead “espoused and endorsed” false statements made by program guests.
Dominion attorneys argued that Fox employees allowed guests to falsely claim that the company had rigged the election, flipped large numbers of votes to Biden through a secret algorithm, was owned by a company founded in Venezuela to rig elections for Hugo Chavez, and bribed government officials.
They pointed to deposition testimony and internal communications — including fact checks from a Fox “brain room,” indicating that, within days of the election, many Fox employees harbored serious doubts about those claims: “There’s no evidence of widespread fraud in the 2020 election,” according to one fact check from Nov. 13, 2020.
But Fox’s attorney argued that the accuracy of the allegations isn’t the main issue.
“What matters is whether the press accurately reports the allegations, not whether the underlying allegations are true or false,” said Murphy, adding that the distinction between a factual statement and an opinion is also important.
She also contended there’s no evidence that Fox Corp. showed any malice — a key legal standard in libel cases — toward Dominion, because there is no evidence that any corporate executives were directly responsible in deciding to air the alleged defamatory statements.
However, as Murphy led the judge through a list of Fox broadcasts, it became clear that programs of former Fox host Lou Dobbs, aired shortly after the 2020 election, could be an issue for the network.
“There seems to be a Dobbs problem,” Davis said.
Murphy countered that Dobbs was “an opinion host” who cited Dominion’s denials, but also acknowledged: “It’s abundantly clear that he believes all of these things.”
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