A jury is to hear Dominion Voting Systems' $1.6 billion defamation lawsuit against Fox News in April. But in the court of public opinion, Dominion has already presented a damning case that has damaged the cable network’s reputation, according to experts.
Yahoo News spoke to professors who specialize in journalism ethics, as well as to experts in First Amendment law, who said that the case against Fox News is unusual in that it appears to show how those in charge at the network made a deliberate decision to broadcast information that they knew was false at the time. Whether or not Fox will be found legally liable for defaming Dominion, experts said, its conduct seems to have clearly violated the core principles of journalistic ethics.
In a pair of sensational court filings made public over the last few weeks, Dominion has laid out a trove of evidence obtained during the discovery process — including deposition transcripts, email and text records — revealing that, in the days and weeks after the 2020 election, high-ranking Fox executives and on-air stars did not believe the allegations of voter fraud being made by then-President Donald Trump and his allies.
Fox News nevertheless proceeded to promote those unfounded claims to its primetime audience — the largest of any cable news network — repeatedly giving airtime to Trump's attorneys Sidney Powell and Rudy Giuliani, who, according to the filings, many Fox staffers privately believed were unreliable.
Dominion alleges that Fox's decision to promote these false claims was part of a cynical strategy to recover viewers loyal to Trump, who had abandoned the network for other conservative outlets like Newsmax after Fox reported, accurately, that Joe Biden had taken Arizona. This, effectively, meant that the election was over and that Trump had lost. It points to a variety of evidence, including internal communications at the time, indicating concern within the network over the backlash after the Arizona call — and its impact on the company's stock price. It also notes depositions given by Fox News reporters who later said they were reprimanded for fact-checking false claims made by Trump surrogates on air.
Fox, in its own filings, has accused Dominion of “cherry-picking soundbites, omitting key context, and mischaracterizing the record.”
“Dominion’s lawsuit has always been more about what will generate headlines than what can withstand legal and factual scrutiny,” Fox said in a statement this week. “Their summary judgment motion took an extreme, unsupported view of defamation law that would prevent journalists from basic reporting and their efforts to publicly smear FOX for covering and commenting on allegations by a sitting President of the United States should be recognized for what it is: a blatant violation of the First Amendment.”
Legal experts told Yahoo News that the breadth of evidence presented by Dominion is unusual for libel cases brought against media organizations, which require public figures to prove that defamatory statements were made with actual malice, meaning that the defendant knew they were false at the time or acted with “reckless disregard” for the truth.
“It's just so rare to have such contemporaneous evidence of a defamation defendant’s state of mind when the statements are being made,” Enrique Armijo, a First Amendment scholar and professor at Elon University School of Law, told Yahoo News. “It's pretty bad when you have someone in the news department saying: 'This person is crazy' and then interviewing that person on the air.”
The evidence against Fox is also singular in another respect.
"It's really rare, to my knowledge, to have a major news organization, or what claims to be a news organization, willingly broadcast what it knew to be lies," said Samuel Freedman, a professor at Columbia Journalism School. "It's an egregious violation of journalism ethics."
Freedman told Yahoo News that if news organizations publish or broadcast factually inaccurate material, it is typically the result of an honest mistake, not a deliberate decision.
"Maybe there was sloppy reporting, maybe the verification wasn't done carefully enough. Maybe even some self-interested actor successfully planted information with a news organization," he said. "But none of those apply here."
Christopher Hanson, an associate professor at the University of Maryland's Merrill College of Journalism, pointed to the Society of Professional Journalists' four key principles of ethical journalism, which it encourages "all people in all media" to practice.
“Fox appears to have violated every one of these, big time,” he said.
A spokesperson for Fox News declined to provide an on-the-record response to the accusations of unethical conduct, directing Yahoo News to the statement included above.
'Seek the truth and report it'
The first of these principles is to “Seek the truth and report it,” under which the SPJ offers a number of guidelines for how journalists should adhere to this principle, including “verify information before releasing it” and “Gather, update and correct information throughout the life of a news story.”
Fox News, said Hanson, “obviously [was] doing the opposite,” in the days and weeks after the 2020 election. Hanson cited text and email records in the Dominion filings. In one from the host Tucker Carlson to Laura Ingraham on Nov. 18, 2020, Carlson wrote: “Sidney Powell is lying. I caught her. It’s insane.”
“Sidney is a complete nut,” Ingraham responded. “No one will work with her. Ditto with Rudy.”
Likewise, a Nov. 19 email from News Corp's chairman, Rupert Murdoch, described claims that Giuliani was making at a press conference aired live on Fox News as, “Really crazy stuff. And damaging.”
Dominion has accused Fox News of broadcasting approximately 115 defamatory statements about Dominion’s voting machines, many of which, it says, were made after Dominion began sending “at least a dozen separate and widely-circulated fact check emails each pointing to verifiable third-party information debunking the claims.”
According to the Society for Professional Journalists, part of seeking truth and reporting it is to provide context, and to “Diligently seek subjects of news coverage to allow them to respond to criticism or allegations of wrongdoing.”
In its court filings, Fox News notes that on Nov. 22, 2020, Fox New anchor Eric Shawn conducted an interview with Dominion spokesperson Michael Steel. But, it contends that Dominion declined other invitations from Fox "to tell its side of the story."
According to the Society of Professional Journalists, "Ethical journalism treats sources, subjects, colleagues and members of the public as human beings deserving of respect," and journalists should "balance the public's need for information against potential harm or discomfort."
Ethics experts who spoke to Yahoo News said the decision by Fox to air false claims of voter fraud was exacerbated by the potential that they could erode viewers’ faith in the legitimacy of the 2020 election and in democracy more broadly.
As Carlson put it during his show on Nov. 19, 2020, what Powell and Giuliani were alleging “would amount to the single greatest crime in American history.”
According to one of the Dominion filings, on Jan. 5, 2021 — on the day before a mob of Trump supporters, fueled by false claims of a stolen election, violently stormed the U.S. Capitol — Murdoch emailed Fox News' CEO, Suzanne Scott, writing: “It's been suggested our prime time three should independently or together say something like the election is over and Joe Biden won, and that such a statement would go along [sic] way to stop the Trump myth that the election [was] stolen.”
No such statement was ever made by the primetime hosts on air.
“Because there's so much going on, you cannot prove that this coverage directly caused Jan. 6, but it looks very, very likely that it contributed to it,” Hanson said.
Freedman argued that there is a “straight line” between Fox’s decision to give credibility to the fraud claims and the events of Jan. 6.
“And that, just as we've seen, has so done much lasting damage to our democracy,” he said.
'Serve the public'
“The highest and primary obligation of ethical journalism is to serve the public,” says the Society of Professional Journalists.
Journalists are encouraged to “resist internal and external pressure to influence coverage.”
Internal communications obtained by Dominion reveal that executives and anchors at Fox News were concerned about the financial impact of the backlash over their decision to call Arizona for Biden and that they set out to lure back viewers who’d defected to outlets like Newsmax.
"Viewers going through the 5 stages of grief,” Scott wrote to Lachlan Murdoch, the CEO and executive chairman of Fox Corporation, on Nov. 9, 2020. “It's a question of trust the AZ [call] was damaging but we will highlight our stars and plant flags letting the viewers know we hear them and respect them.”
After that, according to Dominion, “Fox executives also began to criticize Fox hosts for truthful reporting.”
Examples of this included in the fillings include a Nov. 12 text chain between hosts Laura Ingraham, Sean Hannity and Tucker Carlson, in which Carlson complained that one Fox reporter, Jacqui Heinrich, should be fired for fact-checking a tweet from Trump, which referred to Fox News' coverage of supposedly rigged voting machines.
“Please get her fired,” Carlson wrote to his fellow hosts. “It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.”
A few days later, according to Dominion, Rupert Murdoch sent an email with the subject line “Watching Giuliani!” This apparently referred to a press conference being broadcast live on Fox News, at which Giuliani and Powell rattled off a series of unsubstantiated charges about Dominion voting machines. In the body of the email read: “Really crazy stuff. And damaging.”
Fox aired the press conference in its entirety.
According to the filing, then-White House correspondent Kristen Fisher said in a deposition that she was reprimanded for attempting to fact-check some of the outlandish claims made by Giuliani during the press conference that Murdoch called "really crazy stuff."
“If you have your eye on the bottom line, and [are] losing money because your audience is going away, so you … put out stuff that you know is false in order to appease your audience, then you're not independent of your audience, you're a slave to your audience,” said Hanson.
Freedman emphasized that “there is nothing untoward about being a for-profit news organization,” noting that “there are plenty of responsible, ethical news organizations that worry about their stock price. If you're in a capitalist economy, that's a reasonable worry.”
However, he said, “the idea that you would promulgate known falsehoods, conspiracy theories, not just kind of innocent errors, but an attack on the integrity of the election system, purely to keep your audience numbers high so your stock price holds its value, that's a total dereliction of journalistic duty.”
'Be accountable and transparent'
The SPJ’s final principle of ethical journalism is “be accountable and transparent,” which includes acknowledging and correcting mistakes, and exposing “unethical conduct in journalism, including within [one’s] own organization.”
Again, Fox appears to have done the opposite, according to Dominion, which notes in its filing that “Despite the internal recognition that the election was over, Fox did not retract its claims about Dominion. Instead, it kept defaming Dominion. To this day, Fox has never retracted the false statements it broadcast about Dominion.”
Fox’s primary argument is that allegations of voter fraud by a sitting president are newsworthy, and that the First Amendment should protect the right of the press to report on newsworthy allegations without fear of being sued for defamation.
“Under Dominion’s approach, if the President falsely accused the Vice President of plotting to assassinate him, the press would be liable for reporting the newsworthy allegation so long as someone in the newsroom thought it was ludicrous,” Fox writes in its own motion for a summary judgment. “Such a rule would stop the media in its tracks.”
"Fox's position is ... news outlets have to be able to talk about what the president and his representatives are saying, even if that turns out to be false," said Armijo, the First Amendment scholar from Elon University. He said that courts in some states have accepted this argument as a limited defense against libel suits, under what's known as the "neutral reportage privilege."
“Neutral reportage privilege says if you’re reporting neutrally on something, you're privileged. You're not going to be held liable for your reporting if it turns out to be defamatory,” Armijo explained. The operative word in this defense, though, is “neutrally,” as it almost always requires the reporting in question to be unbiased and in the public interest.
Armijo said the best evidence Dominion has that Fox’s reporting was not, in fact, neutral “was the fact that Fox had Dominion's responses to these allegations, and it was not giving them the same level of attention, [or] endorsement in its reporting, that it was giving the false claims by Powell, Giuliani, Lindell and others about Dominion.”