To win a defamation lawsuit, public figures have to prove that not only did the defendant defame them, but that the defendant knew that he or she was lying and did it anyway (or was so reckless in their regard for the truth that they should have known). In other words, the plaintiff has to prove actual malice. That is often the hardest part of a case to prove. For a private citizen, the requirements aren't so strong. Dominion Voting Systems has sued Fox for lying about its machines. It is not clear which standard will apply to it, but it is assuming it will have to meet the stricter test and is working on it.
In a 200-page court filing, last week, Dominion appears to have passed the stricter test with flying colors. The filing includes numerous e-mails and messages sent among the top Fox News hosts and management. It is very clear that they knew Trump lost the 2020 election but lied about it over and over on the air intentionally. For example, Tucker Carlson texted his producer 2 days after the election with "He could easily destroy us if we play it wrong." On Nov. 18, he wrote to Laura Ingraham: "Sidney Powell is lying. F**king bitch. Sidney is a complete nut. No one will work with her. Ditto with Rudy." Bret Baier wrote in a memo to management: "The is NO evidence of fraud." Ingraham and Sean Hannity sent numerous other messages to each other and to management saying that they knew Trump lost and his lawyers were crazy liars. Rupert Murdoch was fully on board with the Fox hosts. He said that the idea that the election was stolen was "really crazy stuff."
Despite knowing the truth, all of the hosts interviewed Trump's lawyers at length and let them peddle all the lies they wanted to, without any pushback at all. How come? One short message from Murdoch to Fox News CEO Suzanne Scott explained it: "Everything at stake here." Murdoch, Scott, and other executives all knew the truth. No, not that truth (that Trump lost). They knew the more important truth that if the hosts said: "Trump lost, let's move on to win 2022 now," that they would bleed vast numbers of viewers to Newsmax, whose coverage of the election makes "George Santos" look as honest as George Washington. Murdoch and the others knew that if they told the truth on air, it would destroy their entire business model. They knew that the choice they faced was either: (1) tell the truth and lose a large part of their audience or (2) lie through their teeth and keep their audience happy. That pretty much nails the actual malice part. They knowingly defamed Dominion because it helped them financially. All these internal messages, which Dominion got through the discovery process, are going to be fatal at a jury trial. After hearing a few dozen of these read out loud in court, no juror is going to think: "Carlson really believed Trump won, so he wasn't lying." His own words in multiple messages show he knew Trump lost but on-air said he won. That's pretty much the definition of "intent."
The top executives agonized over what to do (probably with some input from the general counsel). But in the end, they made the decision to take the line that Trump won and they blamed Dominion for stealing the election. It was simply a business decision to avoid bleeding viewers to Newsmax. They kept a close watch on it. When anchor Neil Cavuto cut away from a live briefing by then-press secretary Kayleigh McEnany, warning viewers that she was "making unsubstantiated claims about election fraud," he later got some negative feedback from higher-ups about this. Everyone was expected to toe the party line.
Everyone knew Newsmax was lying. Fox News President Jay Wallace sent a message to Scott saying: "The Newsmax surge is a bit troubling—truly an alternative universe when you watch, but it can't be ignored." Again, the message to the jurors will be that Fox knew the truth and intentionally lied on air to keep from losing viewers to Newsmax. That's not a good defense for defamation. In fact, it's about the worst possible defense.
In another message, Scott wrote: "The audience feels like we crapped on [them] and we have damaged their trust and belief in us." When Fox host Dana Perino warned Scott that a lawsuit from Dominion was likely, she wrote back that the on-air personalities couldn't afford to "give the crazies an inch right now." So she knew exactly what she was ordering and took her chances with the lawsuit. Now the chickens have come home to roost.
One strategy Fox's lawyers are working on is claiming that Dominion could not possibly have suffered $1.6 billion in damages due to its lying. Maybe they are working on a plan to settle for a few tens of millions rather than going to trial. But a trial is scheduled for April, so if there is to be a negotiated settlement, it has to come soon. And Dominion has indicated, rather believably, that they are not interested in settling. The company really needs a judgment in its favor in order to salvage its reputation. (V)