Will Fox News settle the Dominion defamation lawsuit? First Amendment experts arent so sure – Yahoo News
(Getty)
Private communications made public in a defamation lawsuit against Fox News revealed some of the networks top stars and executives acknowledging baseless conspiracy theories surrounding the 2020 presidential election.
The $1.6bn lawsuit from Dominion Voting Systems, the company at the centre of bogus on-air statements from Donald Trumps allies, argues that the right-wing media network knowingly presented false claims that energised competing networks that threatened Fox viewership.
Private admissions detailed in court filings show text messages, emails and sworn testimony questioning or ridiculing unreliable guests and spurious arguments while at the same time conceding that publicly rejecting those claims would risk alienating their viewers.
Embarrassing and potentially reputation-damaging behind-the-scenes revelations, stitched together in Dominions sprawling case alleging a media empire that relies on lying to its audience, may be compelling evidence, but they are not necessarily enough to reach the high bar in a billion-dollar defamation case, according to legal analysts.
Those findings will be enormously helpful for a jury to consider Dominions case if a trial begins as scheduled in April. But prevailing in court means Dominion must prove that Fox aired defamatory statements knowing that they were false or with reckless disregard for the truth, and link those accusations to the states of mind of those responsible for airing them.
Those hurdles are outlined in the US Supreme Court precedent established in The New York Times v Sullivan, a landmark press freedom case from 1964 that has also been at the centre of right-wing attacks on the media, including recent lawsuits from Sarah Palin and Donald Trump.
Some analysts argue that Dominions case against the most-watched cable media outlet could deliver a blow to press freedom protections while, ironically, powerful right-wing figures launch their own legal challenges to strip the Sullivan precedent entirely.
Story continues
A spokesperson for Fox News told The Independent that Dominion joins a long line of public figures and corporations across the country that have long tried to silence the press, and this lawsuit from Staple Street Capital-owned Dominion is nothing more than another flagrant attack on the First Amendment.
Fox News will continue to fiercely protect the free press as a ruling in favor of Dominion would have grave consequences for journalism across this country, the statement said.
In another twist of fate, Dominions case literally involves the levers of democracy, things that we should be very wary about punishing, according to Andrew Geronimo, director of the First Amendment Clinic within the Milton and Charlotte Kramer Law Clinic at Case Western Reserve University School of Law.
We want to encourage a robust and wide-open discussion about public affairs, especially about how to run our governments, and we want to allow for some breathing room to let people talk about this without having to do the full journalistic run at it, he told The Independent.
But what you cant do is knowingly lie about somebody in a way that damages them, he said.
Dominion submitted dozens of pages outlining the considerations needed to meet the actual malice standard, including statements and messages from the networks on-air personalities, producers and executive leadership, as well as Fox Corporation chairman Rupert Murdochs admission in a sworn deposition that some of his stars were endorsing a false narrative around the 2020 election.
Attorneys for Fox News argue that Dominion has sought to distract from its evidentiary deficiencies by cherrypicking anything it can find from any corner of the Fox News organisation that shows that anyone at Fox News doubted or disbelieved the presidents allegations.
From there, it posits that Fox writ large not the specific person(s) at Fox News responsible for each statement knew that that specific statement was false, according to court filings from Fox News.
In addition to uncovered messages and admissions in sworn testimony, Dominions case has relied on showing a much-larger picture of the Fox organisation, its decision making, and its concerns over declining viewership with competition from other right-wing networks that have indulged the former presidents conspiracy theories.
That is the media story narrative driving Dominions case, so you dont get the plausible deniability of were just putting newsworthy stuff on air, which is the argument [Fox] is making, Mr Geronimo said.
In legal briefs, attorneys for Fox News have argued that news organisations have an obligation to air newsworthy allegations, especially those from a sitting president. But those claims are likely to dissolve if the network was driven by profit rather than facts, according to legal analysts.
The fact that there was arguably a motive by Fox to publish these accusations against Dominion based on its own economic interests in retaining Trump viewers would, if believed by the jury, probably destroy that argument, Rutgers University law professor Ronald Chen told NPR.
Attorneys for Fox News have argued that Dominion was not damaged anywhere close to the $1.6bn the voting machine company is seeking.
But if there are boards of elections around the country canceling contracts with Dominion and citing some of this reporting that turns out to be false, I think that is a way to show damages, Mr Geronimo said.
I think what a trial really should do in this case is go through statement by statement, and figure which of them are statements of fact, and if they are statements of fact, which of them are false, he told The Independent. And if theyre false, which of them damaged Dominion? I think there should be a pretty granular and specific analysis of what was said, who knew what and when, and only if all those boxes are checked should there be some kind of liability.
Richard Tofel, former president of nonprofit investigative news publisher ProPublica, argued that the parties should settle. For Dominion, that means reaching a conclusion long before a potentially lengthy trial, conviction and sentencing that could take months or years to enforce.
Dominion has proved the hardest part of its case, that Fox not only repeatedly broadcast untruths in the days and weeks after the election, but that it did so knowingly, and for the base motive of pandering to viewers, especially as some defected to rival networks, and thus preserving profits, he wrote.
Fox, on the other hand, could settle to avoid a potentially even-larger trial verdict amount, and, perhaps more importantly to its business, the network would avoid having to publicly and repeatedly admit a series of truths that, as court filings have revealed, could damage the business and crash viewership.
A settlement scenario would not necessarily be an admission of guilt but could include an agreement that Fox News agrees to say those things we got sued over, he said.
I dont think a settlement would change how Fox does business really in any way, he told The Independent. This whole incident might make them a little bit more cautious.
Rupert Murdoch (REUTERS)
Tim Heaphy, a former federal prosecutor and the lead investigator for the House select committee investigating January 6, said that the legal system in this case reveals its function as a forum in which people can address grievances and get justice, and there is an important sort of public discourse benefit, because a lot of that plays out in a public way.
He suggested that Dominion may not want to settle exactly for that reason.
They want a lot of these facts to be laid bare in a courtroom in a public proceeding, he told MSNBC. Were headed there. There may be more of these kinds of behind-the-scenes allegations, and I do think that theres a useful long-term benefit for people to understand.
A victory for Dominion at a trial could be a devastating blow to Fox. Longtime First Amendment attorney Lee Levine told The Los Angeles Times: I have a hard time envisioning a scenario in which Fox wins before a jury.
But some legal analysts fear that elevated scrutiny into a media outlet on the hook for hundreds of millions of dollars in damages or more, if a jury decides could cause long-term harm to US newsrooms.
Generally speaking, it is not a good idea to permit a wholesale inquiry into newsroom decisions as a whole, and also I include ownership as part of that inquiry, according to James Goodale, the New York Times general counsel who advised the paper to publish the Pentagon Papers, speaking to NPR.
No matter how much I might personally deplore what Fox is alleged to have done, I worry a lot more about the longer term-ramifications, according to Jane Kirtley, University of Minnesota media law professor and a former executive director of the Reporters Committee for Freedom of the Press, speaking to NPR.
To simply say Fox is a bunch of liars that they shouldnt be allowed to get away with this and their wild speculations should not be reported and should not be protected I just think that that is a slippery slope, she told the outlet.
But the problem is that by lifting the veil on the editorial decision-making process, we are now going to see all news organizations called into question going forward, she added.
Fox has argued similarly in statements to the press; a spokesperson told The Independent that the case presents an unprecedented assault on the First Amendment.
But even if Dominion makes their case and convinces a jury to shovel truckloads of Foxs money to [Dominion], nothing in this case presents a meaningful threat to the First Amendment, according to former Bloomberg counsel and New York University professor Charles Glasser, speaking to NPR.
It really comes down to the facts about how the story was crafted and disseminated, he added.
Mr Geronimo told The Independent that a jury, in the end, might just not like you.
And if they dont like you, then they might be inclined to fight against you, he said.
I dont think we want people just picking sides and apportioning liability there, because then what, when the sides are flipped? he added. Thats a dynamic that I will be watching if it goes to trial: Are they doing what I think the analysis requires, which is finding specific statements, and checking off the elements? Or is it all just like, Look how bad Fox was? and not be as specific with which statement was a false statement of fact.
Read more here:
Will Fox News settle the Dominion defamation lawsuit? First Amendment experts arent so sure - Yahoo News
- How a Gossip Blogger Became the Poster Child for First Amendment Rights | On the Media - WNYC Studios | Podcasts - December 12th, 2025 [December 12th, 2025]
- JD Vance floats First Amendment 'exception' to ban '6-7' - Fox News - December 12th, 2025 [December 12th, 2025]
- Free speech advocates rally to support FIREs defense of First Amendment protections for drag shows - FIRE | Foundation for Individual Rights and... - December 12th, 2025 [December 12th, 2025]
- Law's Andrew Geronimo discusses political websites and the first amendment - Case Western Reserve University - December 12th, 2025 [December 12th, 2025]
- Texas runs afoul of the First Amendment with new limits on faculty course materials - FIRE | Foundation for Individual Rights and Expression - December 12th, 2025 [December 12th, 2025]
- First Amendment expert weighs in on new University of Florida neutrality policy - WCJB - December 12th, 2025 [December 12th, 2025]
- Public libraries in TX, LA, and MS are no longer protected by the First Amendment. - Literary Hub - December 12th, 2025 [December 12th, 2025]
- Congressman Murphy introduces bills to fortify First Amendment rights on college campuses - WCTI - December 12th, 2025 [December 12th, 2025]
- Oregon lawsuit accuses Trump admin of chilling First Amendment rights during ICE protests - KOIN.com - December 12th, 2025 [December 12th, 2025]
- The Man Accused of Killing Charlie Kirk Appears in Court for 1st Time as a Judge Weighs Media Access - First Amendment Watch - December 12th, 2025 [December 12th, 2025]
- ICEBlock App Maker Sues Trump Administration Over Its Pressure on Apple To Remove App - First Amendment Watch - December 12th, 2025 [December 12th, 2025]
- Federal judge to hear arguments on motion in professor's First Amendment lawsuit against UT - WBIR - December 12th, 2025 [December 12th, 2025]
- Inside the First Amendment fight over how Los Angeles polices words - USA Today - November 30th, 2025 [November 30th, 2025]
- Brands, bands, trademarks and the First Amendment - The Global Legal Post - November 30th, 2025 [November 30th, 2025]
- First Amendment in flux: When free-speech protections came up against the Red Scare - Free Speech Center - November 30th, 2025 [November 30th, 2025]
- The Pentagon and the FBI are investigating 6 legislators for exercising their First Amendment rights - Reason Magazine - November 30th, 2025 [November 30th, 2025]
- Corporations Say Its Their First Amendment Right To Hide - The Lever - November 30th, 2025 [November 30th, 2025]
- Campus Crackdown on the First Amendment - Folio Weekly - November 30th, 2025 [November 30th, 2025]
- Lange: Annoying emails are not exempt from the First Amendment - WyomingNews.com - November 30th, 2025 [November 30th, 2025]
- From burgers to the First Amendment: Cozy Inn wins mural lawsuit - KAKE - November 20th, 2025 [November 20th, 2025]
- Salina violated First Amendment rights of Cozy Inn on mural issue - The Hutchinson News - November 20th, 2025 [November 20th, 2025]
- After Bobby George Threatened to Sue Online Critics, CWRU's First Amendment Clinic Stepped In - Cleveland Scene - November 20th, 2025 [November 20th, 2025]
- First Amendment in flux: When free speech protections came up against the Red Scare - The Conversation - November 20th, 2025 [November 20th, 2025]
- First Amendment litigator explains the dos and donts of student protest - The Dartmouth - November 20th, 2025 [November 20th, 2025]
- We should protect the First Amendment like we do the Second - Indiana Capital Chronicle - November 20th, 2025 [November 20th, 2025]
- First Amendment lawyer Floyd Abrams and Berkshire Eagle President Fred Rutberg talk free speech, press freedom at the Triplex Cinema - The Berkshire... - November 20th, 2025 [November 20th, 2025]
- E&C Democrats: The Trump Administration is Violating the Whistleblower Protection Act and First Amendment by Retaliating Against Bethesda Declaration... - November 20th, 2025 [November 20th, 2025]
- First Amendment in flux: When free speech protections came up against the Red Scare - itemonline.com - November 20th, 2025 [November 20th, 2025]
- Judge rules Salina violated Cozy Inns First Amendment rights over burger mural - KSN-TV - November 20th, 2025 [November 20th, 2025]
- 7 Former FCC Commissioners Want 'News Distortion Policy' Rescinded for Threatening First Amendment - TheWrap - November 16th, 2025 [November 16th, 2025]
- Crystal River and the First Amendment - chronicleonline.com - November 16th, 2025 [November 16th, 2025]
- AG Sulzberger Honored with The James C. Goodale First Amendment Award - The New York Times Company - November 16th, 2025 [November 16th, 2025]
- Kansas county pays $3M for forgetting the First Amendment - Freedom of the Press Foundation - November 16th, 2025 [November 16th, 2025]
- Teachers and social media: A First Amendment fight - WGCU - November 16th, 2025 [November 16th, 2025]
- What To Know About How Florida Will Teach McCarthyism and the Cold War - First Amendment Watch - November 16th, 2025 [November 16th, 2025]
- Texas A&M University Professors Now Need Approval for Some Race and Gender Topics - First Amendment Watch - November 16th, 2025 [November 16th, 2025]
- Santa Ana cops need a refresher on the First Amendment - Orange County Register - November 16th, 2025 [November 16th, 2025]
- Was Mississippi State student arrested over 'free speech'? See what the First Amendment says - The Clarion-Ledger - November 16th, 2025 [November 16th, 2025]
- Social media restrictions and First Amendment rights for children | 'Law of the Land' on the Sound of Ideas - Ideastream - November 10th, 2025 [November 10th, 2025]
- Test your Constitutional knowledge: When can free exercise of religion be limited under the First Amendment? - AL.com - November 10th, 2025 [November 10th, 2025]
- Editing federal employees emails to blame Democrats for shutdown violated their First Amendment rights, judge says - CNN - November 7th, 2025 [November 7th, 2025]
- I am in love with the First Amendment | Opinion - PennLive.com - November 7th, 2025 [November 7th, 2025]
- EXCLUSIVE: Texas Good Ol Boys Club vs. First Amendment Krottinger Arrested Over Meme - Yahoo - November 7th, 2025 [November 7th, 2025]
- Trump Administration Speeds up New Rules That Would Make It Easier To Charge Some Protesters - First Amendment Watch - November 7th, 2025 [November 7th, 2025]
- America struggles to balance First Amendment free speech with gun rights amid political violence - Milwaukee Independent - November 7th, 2025 [November 7th, 2025]
- Man Who Threw Sandwich at Federal Agent in Washington Is Found Not Guilty of Assault Charge - First Amendment Watch - November 7th, 2025 [November 7th, 2025]
- Judge Will Order Federal Agents in Chicago To Restrict Using Force Against Protesters and Media - First Amendment Watch - November 7th, 2025 [November 7th, 2025]
- EXCLUSIVE: Texas Good Ol Boys Club vs. First Amendment - Krottinger Arrested Over Meme - Dallas Express - November 7th, 2025 [November 7th, 2025]
- Inside the 'harsh terrain' of Columbia University's First Amendment predicament - USA Today - October 28th, 2025 [October 28th, 2025]
- Biden Warns of Dark Days for the Country as He Urges Americans To Stay Optimistic - First Amendment Watch - October 28th, 2025 [October 28th, 2025]
- Victory! Court Rules that Minnesota Horse Teacher is Able to Continue Teaching in Important First Amendment Win - The Institute for Justice - October 28th, 2025 [October 28th, 2025]
- Anti-Abortion Pregnancy Centers Are Looking To Offer Much More Than Ultrasounds and Diapers - First Amendment Watch - October 28th, 2025 [October 28th, 2025]
- May the First Amendment be with you: Protester sues after Imperial March performance sparks arrest - Fast Company - October 26th, 2025 [October 26th, 2025]
- Mitchell and Mayes ask judge to toss out law against prosecutions targeting First Amendment rights - KJZZ - October 26th, 2025 [October 26th, 2025]
- Creator of app that tracked ICE talks about its removal and the First Amendment - NPR - October 24th, 2025 [October 24th, 2025]
- How Trump's Threats Against the NFL Could Violate the First Amendment - American Civil Liberties Union - October 24th, 2025 [October 24th, 2025]
- 'He played The Imperial March as he walked': Man arrested for playing Darth Vader's theme at National Guard troops sues over alleged First Amendment... - October 24th, 2025 [October 24th, 2025]
- Arizona law protects First Amendment rights. Maricopa County wants to overturn it - azcentral.com and The Arizona Republic - October 24th, 2025 [October 24th, 2025]
- John Foster: First Amendment rights and whether you really should say that - dailyjournal.net - October 24th, 2025 [October 24th, 2025]
- Creator of app that tracked ICE talks about its removal and the First Amendment - Boise State Public Radio - October 24th, 2025 [October 24th, 2025]
- Author Michael Wolff Sues Melania Trump, Saying She Threatened $1B Suit Over Epstein-Related Claims - First Amendment Watch - October 24th, 2025 [October 24th, 2025]
- Creator of app that tracked ICE talks about its removal and the First Amendment - WVIA Public Media - October 24th, 2025 [October 24th, 2025]
- Jimmy Kimmel Clash Was "Never About The First Amendment", Sinclair Exec Insists; FCC "Overreach" & Nexstar-Tegna Mega-Deal... - October 23rd, 2025 [October 23rd, 2025]
- Sinclair COO Rob Weisbord insisted that the local TV giant's recent clash with late-night host Jimmy Kimmel was "never about the First... - October 23rd, 2025 [October 23rd, 2025]
- Historys Lessons for the Second Committee for the First Amendment - The Nation - October 21st, 2025 [October 21st, 2025]
- Why did the city turn off social media comments? Does that violate the First Amendment? - WQOW - October 21st, 2025 [October 21st, 2025]
- Euphemisms, Political Speech, and the First Amendment - The Dispatch - October 21st, 2025 [October 21st, 2025]
- Indiana University Fires Student Newspaper Adviser Who Refused To Block News Stories - First Amendment Watch - October 21st, 2025 [October 21st, 2025]
- Mike Johnson Accuses No Kings Protesters of Blatantly Exercising First Amendment Rights - The Borowitz Report - October 21st, 2025 [October 21st, 2025]
- Florida chooses harassment and intimidation, over the First Amendment | Letters - Tampa Bay Times - October 19th, 2025 [October 19th, 2025]
- Test your Constitutional knowledge: Are these protests protected by the First Amendment? - AL.com - October 19th, 2025 [October 19th, 2025]
- Know Your First Amendment Rights Before the Assignment - National Press Foundation - October 19th, 2025 [October 19th, 2025]
- Lawrence school board candidates share how they would apply the First Amendment while in office - Lawrence Journal-World - October 19th, 2025 [October 19th, 2025]
- Florida chooses harassment and intimidation, over the First Amendment | Letters - Yahoo - October 19th, 2025 [October 19th, 2025]
- First Amendment rights and whether you really should say that - The Republic News - October 19th, 2025 [October 19th, 2025]
- The Knight Institutes Ramya Krishnan on the Trump Administrations Unconstitutional Targeting of Noncitizen Speech - First Amendment Watch - October 19th, 2025 [October 19th, 2025]
- A Brief Legal Analysis of the Department of Educations Proposed Compact for Higher Education - | Knight First Amendment Institute - October 17th, 2025 [October 17th, 2025]
- Attorney General Bonta Co-Leads Multistate Coalition in Defense of First Amendment Protections for Noncitizen Students and Faculty - State of... - October 17th, 2025 [October 17th, 2025]
- Brown University Rejects Trumps Offer for Priority Funding, Citing Concerns Over Academic Freedom - First Amendment Watch - October 17th, 2025 [October 17th, 2025]
- Prominent First Amendment lawyer Floyd Abrams to give annual Amanpour lecture Rhody Today - The University of Rhode Island - October 17th, 2025 [October 17th, 2025]