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
- Its the right thing to do: Defense attorney picks up Shasta protester case pro bono, citing First Amendment concerns - Shasta Scout - July 12th, 2025 [July 12th, 2025]
- The First Amendment Protects Ideologically Based Ad Boycotts - Cato Institute - July 12th, 2025 [July 12th, 2025]
- IRS Finally Recognizes That the First Amendment Permits Pastors To Speak From the Pulpit - The Daily Signal - July 12th, 2025 [July 12th, 2025]
- Pocahontas Mayor Reacts Aggressively to Viral First Amendment Auditor - NEA Report - July 12th, 2025 [July 12th, 2025]
- ACLJ's Decades-Long Fight Leads to IRS Recognizing Churches' First Amendment Rights To Speak About Political Issues and Candidates From the Pulpit -... - July 12th, 2025 [July 12th, 2025]
- Central Piedmont fulfilling requests that would lead to First Amendment lawsuit being dropped: Plaintiffs - Queen City News - July 12th, 2025 [July 12th, 2025]
- How Tempe debate over feeding homeless at parks is becoming a First Amendment conversation - KJZZ - July 10th, 2025 [July 10th, 2025]
- IRS: Pastors and Politicians Dont Lose First Amendment Rights in Pulpit - Focus on the Family - July 10th, 2025 [July 10th, 2025]
- Trump admin waffles in court on whether pro-Palestinian foreigners have full First Amendment rights - Politico - July 8th, 2025 [July 8th, 2025]
- Airlines deportation deal with ICE sparks protests and boycott campaign, leading to First Amendment battle - The Free Speech Project - July 8th, 2025 [July 8th, 2025]
- Trump Judges Find No First Amendment Problem With Florida Forcing Teachers to Misgender Themselves - Balls and Strikes - July 8th, 2025 [July 8th, 2025]
- High Court To Hear Street Preacher's First Amendment Case - Law360 - July 6th, 2025 [July 6th, 2025]
- The Columbus Connection First Amendment, Independence Day Thoughts, and Happy Birthday CCN - Columbus County News - July 6th, 2025 [July 6th, 2025]
- Paramounts Trump Lawsuit Settlement: Curtain Call for the First Amendment? (Guest Column) - IMDb - July 6th, 2025 [July 6th, 2025]
- Fourth of July is a reminder to understand your First Amendment rights - The News Journal - July 4th, 2025 [July 4th, 2025]
- Big Tech Can't Hide Behind the First Amendment Anymore | Opinion - Newsweek - July 4th, 2025 [July 4th, 2025]
- FIRE amicus brief: First Amendment bars using schoolkid standards to silence parents' speech - FIRE | Foundation for Individual Rights and Expression - July 4th, 2025 [July 4th, 2025]
- The First Amendment Protects CNN's Reporting on ICEBlock and Iran - Reason Magazine - July 4th, 2025 [July 4th, 2025]
- MCPS to pay $125K to two county residents who sued over alleged First Amendment violations - Bethesda Magazine - July 4th, 2025 [July 4th, 2025]
- Commentary: Winter Garden arrest threat violated First Amendment rights - Orlando Sentinel - July 4th, 2025 [July 4th, 2025]
- First Amendment Expert Responds To BHUSD Policy - Hoover Institution - July 4th, 2025 [July 4th, 2025]
- Donald Trump: the surprise force who saved the First Amendment - Washington Times - July 4th, 2025 [July 4th, 2025]
- Paramount Will Pay $16 Million in Settlement With Trump Over 60 Minutes Interview - First Amendment Watch - July 4th, 2025 [July 4th, 2025]
- Trump Judges Reject First Amendment Challenge and Uphold Florida Law Requiring Teachers to Use Only Pronouns that Align with their Gender at Birth -... - July 4th, 2025 [July 4th, 2025]
- Justice Thomas sounds alarm on courts misapplying First Amendment in political speech cases - Courthouse News - July 2nd, 2025 [July 2nd, 2025]
- 'The full rigor of the Court's resources': Judge warns Trump against witness 'retribution' in First Amendment case over threatened deportations - Law... - July 2nd, 2025 [July 2nd, 2025]
- Federal Appellate Court Finds that School Board President Violated First Amendment in Restricting Followers on Social Media - JD Supra - July 2nd, 2025 [July 2nd, 2025]
- Protecting Kids Shouldnt Mean Weakening the First Amendment - Public Knowledge - July 2nd, 2025 [July 2nd, 2025]
- Opinion - Jesse Green: Congress must not violate First Amendment in fight against anti-semitism - Northern Kentucky Tribune - June 29th, 2025 [June 29th, 2025]
- VICTORY: New York high school to strengthen First Amendment protections following FIRE lawsuit - FIRE | Foundation for Individual Rights and... - June 28th, 2025 [June 28th, 2025]
- FCCs First Amendment Tour Arrives in Kentucky - The Daily Yonder - June 28th, 2025 [June 28th, 2025]
- ACLU of Pennsylvania Applauds Passage of Legislation to Expand First Amendment Protections in the Commonwealth - ACLU of Pennsylvania - June 28th, 2025 [June 28th, 2025]
- FIRE to court: AI speech is still speech and the First Amendment still applies - FIRE | Foundation for Individual Rights and Expression - June 28th, 2025 [June 28th, 2025]
- Podcast: Broadcast Journalism, First Amendment, and the Future - Wisconsin Broadcasters Association - June 28th, 2025 [June 28th, 2025]
- Advertising Companies Cave to the FTC. Media Matters Sues To Defend the First Amendment. - Reason Magazine - June 28th, 2025 [June 28th, 2025]
- Punishing Universities for Their Viewpoints Violates the First Amendment - Cato Institute - June 28th, 2025 [June 28th, 2025]
- Palestinian Student Sues Michigan School Over Teachers Reaction to Her Refusal To Stand for Pledge - First Amendment Watch - June 28th, 2025 [June 28th, 2025]
- CDT and EFF Urge Court to Carefully Consider Users First Amendment Rights in Garcia v. Character Technologies, Inc. - - Center for Democracy and... - June 24th, 2025 [June 24th, 2025]
- University of Oregon ordered to cover legal fees after settling First Amendment lawsuit - Campus Reform - June 24th, 2025 [June 24th, 2025]
- City attorney cites First Amendment rights in allowing rally; Third Street to open soon - Northern Wyoming News - June 20th, 2025 [June 20th, 2025]
- Guest column: 1,000 gathered in Oak Ridge to defend First Amendment - Oak Ridger - June 20th, 2025 [June 20th, 2025]
- Fighting Antisemitism Should Not Come at the Expense of the First Amendment - Reason Magazine - June 18th, 2025 [June 18th, 2025]
- How Hawley, Marshall choose Trump over the First Amendment | Opinion - Kansas City Star - June 18th, 2025 [June 18th, 2025]
- FARRAND: Saturday was a day we exercised three of our First Amendment rights - thenewsherald.com - June 18th, 2025 [June 18th, 2025]
- The State of the First Amendment in the University of North Carolina System - FIRE | Foundation for Individual Rights and Expression - June 18th, 2025 [June 18th, 2025]
- The First Amendment is Again in Colorados Crosshairs - The Federalist Society - June 18th, 2025 [June 18th, 2025]
- The Military Parade and Protections of the First Amendment - Just Security - June 18th, 2025 [June 18th, 2025]
- Court ruling clarifies limits of NCs First Amendment protection - Carolina Journal - June 18th, 2025 [June 18th, 2025]
- Letter to the Editor - Campbell County Democrats Cherish First Amendment Rights - The Mountain Press - June 18th, 2025 [June 18th, 2025]
- Editorial: Lets remember the peaceably part of First Amendment - Everett Herald - June 18th, 2025 [June 18th, 2025]
- PETA Sues NIH, NIMH in Groundbreaking First Amendment Lawsuit - People for the Ethical Treatment of Animals (PETA) - June 18th, 2025 [June 18th, 2025]
- First Amendment expert explains the right to protest amid 'No Kings' movement - CBS News - June 18th, 2025 [June 18th, 2025]
- ACLU of Nevada shares guidelines for protesters to safeguard their First Amendment rights - KSNV - June 18th, 2025 [June 18th, 2025]
- Las Vegas ICE protests: First Amendment right or breaking the law? - KLAS 8 News Now - June 18th, 2025 [June 18th, 2025]
- Rights afforded to protestors by the First Amendment, and what it does not give you the right to do - Action News Now - June 18th, 2025 [June 18th, 2025]
- What can and can't you do with your First Amendment right of free speech? - KMPH - June 18th, 2025 [June 18th, 2025]
- The First Amendment Is the backbone of democracy - Herald-Banner - June 18th, 2025 [June 18th, 2025]
- First Amendment thoughts ahead of weekend protests | Whales Tales - Auburn Reporter - June 18th, 2025 [June 18th, 2025]
- Mass. AFL-CIO president says Trump administration is 'ripping up' the First Amendment - WBUR - June 10th, 2025 [June 10th, 2025]
- No First Amendment Violation in Excluding Associated Press from "the Room Where It Happens" - Reason Magazine - June 10th, 2025 [June 10th, 2025]
- Contra the Trump FTC, Boycotts Are Protected by the First Amendment - RealClearMarkets - June 10th, 2025 [June 10th, 2025]
- Letter to the editor: Thanks to EPD for respecting my First Amendment rights on Palestine and Israel - Evanston RoundTable - June 10th, 2025 [June 10th, 2025]
- Texas Harassment Conviction for Sending 34 Messages Over 15 Weeks to Ex-Therapist Violates First Amendment - Reason Magazine - June 10th, 2025 [June 10th, 2025]
- Opinion | This Trump Executive Order Is Bad for Human Rights and the First Amendment - The New York Times - June 10th, 2025 [June 10th, 2025]
- Contra the FTC, Boycotts Protected by First Amendment - RealClearMarkets - June 10th, 2025 [June 10th, 2025]
- PBS sues Trump administration over funding cuts, alleging they violate First Amendment - CBS News - June 1st, 2025 [June 1st, 2025]
- British Attacks on Free Speech Prove the Value of the First Amendment - Reason Magazine - June 1st, 2025 [June 1st, 2025]
- Students Protesting the Genocide in Gaza Are Losing Their First Amendment Rights - splinter.com - June 1st, 2025 [June 1st, 2025]
- PBS sues Trump administration, says executive order cutting federal funding violates First Amendment - Fox News - June 1st, 2025 [June 1st, 2025]
- PBS sues Trump over funding cuts to public media and alleges First Amendment violation - Business Insider - June 1st, 2025 [June 1st, 2025]
- Trump Lawyers Claim 60 Minutes Harris Interview Caused Him Mental Anguish, Argue That the First Amendment Is No Shield to News Distortion in Motion to... - June 1st, 2025 [June 1st, 2025]
- Trumps executive orders: Due process, breathtaking sweeps, and the evils of intentional vagueness First Amendment News 472 - FIRE | Foundation for... - June 1st, 2025 [June 1st, 2025]
- Free speech is the rule: Alito wants more First Amendment protections for students after middle schooler is punished for wearing There Are Only Two... - June 1st, 2025 [June 1st, 2025]
- Judge Denies Artificial Intelligence Chatbot First Amendment Protections in Lawsuit - FindLaw - June 1st, 2025 [June 1st, 2025]
- NPR sues over Trump order cutting off its funding, citing First Amendment - Duncan Banner - June 1st, 2025 [June 1st, 2025]
- South Bend Stops YouTubers Bid to Revive First Amendment Claim - Bloomberg Law News - May 17th, 2025 [May 17th, 2025]
- Trump Administration Likely Violated American Bar Association's First Amendment Rights - Reason Magazine - May 15th, 2025 [May 15th, 2025]
- Perkins Coie Litigation Team Secures First Amendment Federal Court Win for DEF CON - Perkins Coie - May 15th, 2025 [May 15th, 2025]
- How swiftly power can be weaponized against dissenting voicesincluding the free and open press as protected by the First Amendment - Northeast Valley... - May 15th, 2025 [May 15th, 2025]
- NYUs First Amendment Watch Launches Trump 2.0: Executive Power and the First Amendment - NYU - May 10th, 2025 [May 10th, 2025]