Delaware Court Says Dominion Voting Systems Can Continue Suing Fox News For $1.6 Billion In Defamation

from the hope-the-charade-was-worth-it,-Fox dept

Another one of Dominion Voting Systems’ many, many lawsuits against Trump loyalists will be allowed to continue. (For a pretty comprehensive rundown of Dominion’s election-related defamation lawsuits, check out these comments by Techdirt reader RP.)

This particular lawsuit was filed in Delaware state court against Fox News Corporation, alleging that many of its hosts and commentators lied about Dominion’s voting machines and its owners during coverage following Donald Trump’s election loss. These false claims continued to be made by Fox News personalities like Lou Dobbs and Maria Bartiromo and amplified by guest commentators (who are also being sued by Dominion elsewhere) like former Trump lawyers Sidney Powell and Rudy Giuliani.

Fox moved to dismiss the lawsuit, claiming there was no defamation here, just a lot of protected speech. Fox’s defense is that repeated lies by hosts and guests were heated hyperbole and statements of opinion rather than defamation. Also, Fox contends it can’t be held responsible for statements made by its employees. From the decision [PDF]:

Fox argues that multiple constitutional doctrines protect Fox’s alleged defamatory speech. First, Fox contends that truthfully reporting newsworthy allegations made by a sitting president and his legal team on matters of public concern is not actionable. Second, Fox claims that the media is completely protected when reporting and commenting about allegations made in government proceedings. Third, Fox asserts that opinion and hyperbolic rhetoric about newsworthy allegations are constitutionally protected. Finally, Fox claims that none of the challenged individual statements identifies actionable defamation against Fox.

But, as the Delaware Superior Court points out in its refusal to toss the case, Fox News and its hosts were provided facts that contradicted on-air statements. And yet these statements continued unaltered, with Fox News playing up the “stolen election” angle to drive viewers to its broadcasts.

It’s that refusal to correct on-air statements that may end up costing Fox News a whole lot of money. Dominion is seeking $1.6 billion, citing the amount of money it has spent fighting months of false claims about its software and hardware, as well as contracts dropped by state officials who bought into the “stolen election” narrative.

The judge says repeating false claims when you have facts in hand can be defamatory. That’s called “actual malice” and it’s definitely actionable. And the reporting on the election and Dominion Voting Systems was far from neutral, undermining Fox’s “neutral reportage” defense.

The Court, reviewing the Complaint’s allegations, notes that it is reasonably conceivable that Fox’s reporting was inaccurate. As alleged, Dominion attempted to factually address Fox’s election fraud allegations. After Fox began connecting Dominion to election fraud claims, Dominion sent Fox executives and television anchors its “SETTING THE RECORD STRAIGHT” emails. Dominion’s emails, which contained analysis from election and related experts, tended to disprove the election fraud claims. Nevertheless, Fox and its news personnel continued to report Dominion purported connection to the election fraud claims without also reporting on Dominion’s emails. When Fox guests spread or reiterated disinformation about Dominion, Fox did not use the information Dominion provided to correct its guests or to reorient its viewers. Instead, Fox and its personnel pressed their view that considerable evidence connected Dominion to an illegal election fraud conspiracy.

In addition, the Court notes that it is reasonably conceivable that Fox was not dispassionate. Given that Fox apparently refused to report contrary evidence, including evidence from the Department of Justice, the Complaint’s allegations support the reasonable inference that Fox intended to keep Dominion’s side of the story out of the narrative. Moreover, the Complaint alleges numerous instances in which Fox personnel did not merely ask questions and parrot responses but, rather, endorsed or suggested answers. Fox therefore may have failed to report the issue truthfully or dispassionately by skewing questioning and approving responses in a way that fit or promoted a narrative in which Dominion committed election fraud.

This doesn’t necessarily mean the neutral reportage defense is completely undercut. But at this point — with Fox having yet to actually respond to the allegations in Dominion’s complaint — Fox can’t make this lawsuit disappear.

First, Fox argues it was not required to “defend” Dominion from Fox’s guest by reporting Dominion’s refutations. Still, Fox’s possession of evidence demonstrating the election fraud claims were untrue supports the reasonable inference that Fox made or published statements knowing they were false or with a reckless disregard for the truth. Fox may not ordinarily have a duty to defend the targets of allegations on which it is reporting; however, Fox must report on those allegations accurately and dispassionately under the neutral reportage defense. Second, Fox argues there are instances in which Fox was critical of the allegations against Dominion and in which Fox reported Dominion’s refutations. Fox may end up being right. This is the pleadings stage though and, at this stage, this argument raises factual issues the Court must resolve in Dominion’s favor. Fox will have the ability to develop this argument during discovery as the case proceeds.

The “fair reporting” privilege also does not apply. This covers “substantially true” coverage of court proceedings. Hardly anything asserted by Dominion to be defamatory fits this description.

The Court recognizes that most of the alleged statements were made before a lawsuit had been filed (e.g., the Powell allegations). As a result, most of the alleged statements, even if true, were not “of” a judicial proceeding. That alone is enough to preclude the fair report privilege. Fox counters with decisions that, according to Fox, hold the fair report privilege applies to “anticipated” or “forthcoming” lawsuits as well as pending proceedings. To the extent Fox argues its personnel were referring to pending election fraud cases filed throughout the nation, and investigations initiated by the federal government, the Complaint alleges facts that Fox’s personnel did not tailor their comments to the allegations in those proceedings. By consequence, the Court finds there is ambiguity, from the viewer’s perspective, as to whether Fox was reporting on those proceedings.

Hyperbole and opinion? Maybe that defense will work for Fox News once discovery is underway and all the facts can be closely examined. But for now, the court finds too many of the statements made by Fox News hosts possibly actionable to toss out the entire suit.

[T]he Court finds it is reasonably conceivable that Fox and its personnel broadcasted mixed opinions that were based on either false or incomplete facts unknown to the reasonable viewer. Many of Fox’s reporters made broad election fraud statements that did not disclose their sources clearly, or clearly connect their statements to the election fraud litigations. Although Fox classifies its reporters’ remarks as “commentary” that used “loose and hyperbolic rhetoric” for entertainment value, even loose and hyperbolic language can be actionable if it rests on false statements of fact undisclosed to viewers. Accordingly, the Complaint supports the reasonable inference that Fox made unprotected statements of fact that defamed Dominion.

It’s those “false statements of facts” that bring in the “actual malice” component of defamation law. The court says Dominion has alleged enough to move forward. Fox’s defense that some of its commentators and hosts contradicted claims of election fraud — perhaps assuming this would mean Fox News as a whole can’t be sued — works against it.

In addition, the Complaint alleges that several of Fox’s personnel openly disclaimed the fraud claims as false. Yet, certain Fox personnel (e.g., Mr. Dobbs) continued to push the fraud claims. The nearby presence of dissenting colleagues thus further suggests Fox, through personnel like Mr. Dobbs, was knowing or reckless in reporting the claims.

That’s not to say this won’t ultimately result in Fox News escaping this lawsuit. But from what the judge has seen so far, Fox definitely has an uphill battle. Fox execs should have known they were playing with litigation fire by allowing their hosts to traffic in false claims about Dominion voting machines — especially after the network was given evidence that directly contradicted these claims. But the network apparently felt the “stolen election” angle was for more profitable and more likely to retain viewers unwilling to believe their president was no longer their president.

As multiple lawsuits continue to work their way through the court system, high-profile Trump acolytes are going to discover that their election conspiracy theories are going to cost them far more than their reputations.

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Comments on “Delaware Court Says Dominion Voting Systems Can Continue Suing Fox News For $1.6 Billion In Defamation”

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65 Comments
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That One Guy (profile) says:

Funny how often that argument's been used lately

As I understand it proving actual malice, that someone knew they were lying, knew that their lies were causing harm and yet continued to do so, is one of the biggest hurdles in defamation cases usually. This time around though it looks like that’s not going to be such a problem and Fox is falling back on the tried and true ‘It’s not defamation because no one sensible would ever believe us’ argument that’s been making the rounds.

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Tanner Andrews (profile) says:

Re: Funny how often that argument's been used lately

actual malice, that someone knew they were lying

In the U.S., what the courts call “actual malice” is defined in NY Times v. Lester B. Sullivan, 376 U.S. 254,280 (1964). Essentially, it means that a public figure claiming defamation must show either knowledge of falsehood or reckless disregard. The public figure must show Times v. Sullivan malice by clear and convincing evidence. Id at 285.

Anonymous Coward says:

Re: Re: Re: uhhhh....

hey, relax — you were correct that the article was way too long & difficult to absorb.
Its 2 dozen paragraphs should have been edited down to 4-5 concise paragraphs.

Essence of article is:

  • Dominion suing Fox for defamation
  • Fox move for dismissal
  • Courts said case could continue
  • Facts of case are still in dispute and will be resolved in court later

The long MR article never said what the specific allegationa were against Fox, nor state what specific alleged-facts Dominion supplied to counter Fox.
Article readers thus remain in the dark about the key aspects of this court case.
The author was clearly presenting a biased advocacy essay.

I view the case as trivial noise.
And I prefer that FoxNews vanish completely, along with the equally dreadful NBC CBS ABC CNN faux news entities.

This comment has been deemed insightful by the community.
James Burkhardt (profile) says:

Re: Re: Re:2 uhhhh....

The long MR Article….

MR Artucle? what article is that? I can think of a few news outlets that might be summarized as MR, but techdirt is only referencing back to older techdirt reporting and the 65 page ruling. Tim cushing nor Techdirt could be summarized as MR.

…never state what the specific allegationa [sic] were against Fox

You should ge aware, The techdirt article links to a 65 page ruling, which summarizes all the allegations. you have claimed this piece is too long, that the 65 page court ruling should be summarized in 4-5 paragraphs but also insist that 4-5 paragraphs include summaries of multiple legal filings with dozens of pages of detailed claims? The court couldn’t summarize the case history in 4-5 paragraphs, I’m not sure how you expected Techdirt to.

However, that dominion sued fox is context, but not the ‘essence’ of the article. Nor is the fact that Fox motioned to dismiss. Those were prior events, reported on, discussed, and moved on from. Constantly re-reporting on those points only rehashes a discussion that’s already been had. If you want that context, you’ll need to read commentary on those events. The essence of the article is the new information which prompts renewed discussion – the ruling. The article explores the ruling, and explores the specific reasoning at each step. It uses current events, the ruling, to explore the law, what limitations to our rights exist in the law.

Techdirt is an opinion site. It takes news and comments on it. it has a bias. All opinions have bias. All reporting has a bias. If you want a 4-5 paragraph summary of a 65-page legal ruling, Techdirt would have to choose what to include and what to leave out. Every news story has to choose how much context to include, how much of current events it has to explain to the consumer. How much needs to be left out for time or space or because a doctoral thesis backed by 2 decades of historical study probably couldn’t provide full, coherent, easily readable context for American political theory and how the discussion got to the state it’s in. There is always more context.

Techdirt simply assumed you were smart enough to go read the other sources they linked, or the ruling they provided in its entirety. That you proved them wrong does not make checks notes ‘quoting the judge’s ruling validatingprior advocacy’ a malicious act. Particularly as despite your claimed inability to read provided legal briefs, you seem to think a key issue in this case is being hidden, but won’t defend you claim by telling me what that key factor is. i don’t have links of sources from the Anon coward, unlike techdirt providing them. i can’t go back through your history and learn the arguments you’ve made before. 100 page articles with full context for me, unsourced hogwash for thee, am i right?

MathFox says:

Re: Re: settle?

By the way the judge discussed the motion to dismiss, Fox (no family) knows that it is unlikely to win "on the merits". If they can get out of this lawsuit with (what they think of as) limited losses, they’ll settle. Unfortunately for them, Dominion sees itself in a strong position now and will only settle when they receive a significant part of their claim.

Lawsuits with claims this size are often litigated and appealed.

This comment has been deemed insightful by the community.
WarioBarker (profile) says:

Re: Re:

They’ll settle

They can offer to settle. If Dominion is smart (and they seem to be), they’ll reject any and every offer Faux News – and everyone else they’ve filed suit against – puts forth. At this point, I think the money is secondary to making sure the liars are duly punished for spreading disinformation.

There’s a very real possibility of the discovery phase doing serious and lasting damage to everyone Dominion’s filed suit against, though the QAnon faithful will undoubtedly see such a result as "they were TAKEN DOWN by the LIES of the DEEP STATE and the DEMONIC RATS in a SHAM TRIAL".

Scary Devil Monastery (profile) says:

Re: Re: Re:2 Re:

It’s a relatively new thing. Started when the GOP began pushing Goebbels old lügenpresse chant of "Fake News" every time the media revealed something unflattering about them…
…but it didn’t take long for liberals to start calling out Fox news with the same pejorative once that outlet decided to go full Trump.

The irony of the term is that in the US above all any form of genuine defamation is an open-shut tort.

Hence why you know a politician hollering "fake news" is lying and trying to win in public opinion what they couldn’t win in court of law.

This comment has been deemed insightful by the community.
James Burkhardt (profile) says:

Re: Re: Re:

Dominion’s reputation is what is most important. To that end, no reasonable settlement can be reached without Fox admitting wrongdoing and providing some sort of assurance tucker or ingram won’t go right back out and say it again. If Fox chose to lay on its sword it could get a settlement from dominion, but i think fox wouldn’t survive.

Remember after the initial legal threat, every host was forced by Fox legal to say on air that claims against dominion have no basis in fact? It hurt them. Same with oAN. Which is why we had that famous moment where an anchor walked off oAN after being forced to read the ‘clarification’ on air and later that week were platforming tge claims again. Admitting they lied, being barred from using ‘hyperbolic language’ or ‘concerned guests’ to try to wiggle out of the admission? Not going to go over well.

Fox built a mob, but they aren’t in control. Not really. No one is. The mob is a bull they are riding for everything they can. They have the tiger by the tail, and just pray it doesn’t turn around. So the last thing they can do is make a permanent voluntary admission of Lying. Particularly with profits shrinking in 2021 even as revenue grows.

That’s why there isn’t going to be a settlement. Fox can accept a court judgement. The secondary media will cover, claiming the deep state railroaded fox. But thet can’t ever admit their lies. And dominion can’t accept a no-fault settlement. it’s not just dominion. Fox can’t afford to alienate the viewers. Fox can survive a billion dollar judgement. Structure it over 10 years and it’s a substantial fraction of profit, but it doesn’t take a loss. they’ll survive. But not if they don’t have viewers.

James Burkhardt (profile) says:

Re: Re: Re:2 Re:

Even better. They lose, cable tv collapses, they declare bankruptcy, And if they still have the mob, the talking heads form the Hound network, telling you the real truth from real investigations to expose the deep state. All tge financiers and executives slowly trickle in and they escape the judgement without ever admitting they lied.

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This comment has been deemed insightful by the community.
Jordan says:

Re: Fire

The fire in a theater comment shows your ignorance of the law.

https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater

"The phrase is a paraphrasing of Justice Oliver Wendell Holmes, Jr.’s opinion in the United States Supreme Court case Schenck v. United States in 1919, which held that the defendant’s speech in opposition to the draft during World War I was not protected free speech under the First Amendment of the United States Constitution. The case was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot).[1]"

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restless94110 (profile) says:

Dominion

Since everyone on Earth knows the election was stolen via Dominion machines, it’s hard to understand why writers at Tech Dirt would support censorship and totalitarianism via these SLAPP suits.

Still nothing about discovery. Has Dominion been forced to show their code yet? I don’t know, but I doubt it. Dominion continues to bluff.

Their bluff will be called. Get on the side of fairness and democracy. You are not there with these articles.

Snark is stupid.

This comment has been deemed insightful by the community.
TFG says:

Re: Dominion

For the record (and this will be my only response to this nonsense): I know that the election was not stolen (thereby invalidating the "everyone on earth" claim)

Biden just got more legit votes than the other guy.

There has never been mass voter fraud. Of the millions and millions of votes casted, even Texas has only managed to prosecute less than 50 cases of voter "fraud" – and most of those are cases of legitimate error, or cases where someone filled out a provisional ballot that wasn’t even counted due to voter ineligibility, and thus the supposed fraudster didn’t even actually vote.

Where have we seen voter fraud perpetrated? In favor of Trump – and even then, it has been single-digit cases. Two or three dumbasses in various states who thought they could vote twice, or pretend their dead mom voted.

It just doesn’t exist. It’s a bugbear used to scare people into making rash decisions and to ram through heinous laws that do nothing to prevent voter fraud but plenty to disenfranchise the downtrodden and consolidate power into the hands of the rich and already powerful.

You want to keep elections from being stolen? Kill Gerrymandering. Demand your council members, your representatives, draw sensible districts. There are districts drawn in such a way you can make the whole alphabet from them, for crying out loud. There’s no reason for that, except to rig elections, except to manipulate legitimate votes in such a way that plentiful voices get drowned out.

David says:

Re: Re: Dominion

[Voter fraud] just doesn’t exist.

Once people have made a claim and defended it with some vigor, they are hesitant to back down on it as doing so makes them look bad and possibly hypocritical.

The collective "there is no voter fraud in the U.S." chorus is actively being solicited now because after the next election with Republican-appointed/intimidated/corrected election officials and tallies it will come in quite handy.

Any attempt at accountability will be met with "you didn’t want any of that last time round".

David says:

Re: Re: Re:2 Dominion

And make no mistake: the general populace’s inability to think of people other themselves as more than a single person, aptly showcased by your response to my rather concise post, will definitely help with accusing people of hypocrisy who will protest humongous amounts of Republican voter fraud for which the groundwork is being laid now.

Anonymous Coward says:

Re: Re: Dominion

It always amazes me that in the US, Land of the Free(TM), Beacon of Democracy(TM), both parties spend a lot of time bending the rules to breaking point. Anything as obviously corrupt as voter suppression or gerrymandering would be shot down in flames of protest in Europe.

Unfortunately, the Republicans are disenfranchising voters using the Democrat play book from the 1800’s (when their polarities seem to be reversed?). Gerrymandering also appears to be a bipartisan sport although the Rep’s seem to revel in it more.

The really scary thing as an outside observer is the background rule changing and repositioning so that electoral power even in blue states, lies with Republican lawmakers – 2020 was only a rehearsal for the proper coup in 2024!

Scary Devil Monastery (profile) says:

Re: Re: Re: Dominion

"Unfortunately, the Republicans are disenfranchising voters using the Democrat play book from the 1800’s (when their polarities seem to be reversed?)"

That’s because the polarities are reversed.

Brief history; Before 1930 or so the Democrats consisted mainly of racists, bigots, old southern money, holdovers from the confederacy and the more inflammatory sects. The republicans in that time were pragmatic, focused on science over religion, and with a brief nod towards humanitarian principles.

But in 1933-1939 Franklin Delano Roosevelt introduced his "New Deal"; massive programs of regulating banks, building infrastructure, job sector reform, social programs, the works…including adding affirmative action programs to get minorities – mainly black people – into government jobs and politics.

The racists and bigots, southern money and confederate holdovers took a great deal of offense over this and began leaving the democratic party. The republicans, meanwhile, were splitting over the New Deal as well, with progressive conservatives moving over to the democrats.

For the democrats this was a godsend – a lot of stale, corrupt, and unpleasant assholes just up and left on their own, leaving the democratic party revitalized.
But it didn’t work out too well for the GOP. They’d lost most of the people with an idea and a thought to the future to the democrats and were left with nothing but arch-conservatism as a platform and base. Come the 1960’s, enter Richard Nixon and Barry Goldwater. A pair of racists with the former at least being smart enough never to use the N-word in public. And they came up with the "Southern Strategy". Pick up all the disaffected southerners who left the democrats. Start dogwhistling to the base of racists and bigots that the republican party is for them.

Over this period of time the democrats and the republicans more or less switched political sides completely. So whenever anyone thinks the current republican party looks like the democratic party of the 18th century that is because that’s what it really is.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Dominion

Still nothing about discovery.

Well, now that Fox lost its chance to avoid that, we’ll see exactly what kind of twisting yourself into a pretzel you’ll need after it proceeds. Thinking Dominion is somehow afraid of discovery doesn’t seem to coincide with efforts to push a lawsuit forward, does it? Then again, ask the dumbfucks sitting in jail how following all the bullshit you’ve been eating worked out.

Buckle up, dumbass. Seems like you still haven’t learned. But that’s not altogether surprising anymore.

Anonymous Coward says:

Re: Dominion

Since everyone on Earth knows the election was stolen

Tell me, how exactly does it feel to be so powerless against the Democrats? That kind of impotence must be so demeaning to you. How does it feel knowing that the only cases moving forward about election fraud are the ones against Fox, Mike Lindell, Rudy, and the Cracken?

But I’m sure you’ll never ask yourselves those questions. You’ve gone too far to backtrack now, amirite? And you’re worried that if you do backtrack, you’ll end up looking stupid. Buddy, do I have some news for you…

Tanner Andrews (profile) says:

Re: Re: Dominion

only cases moving forward about election fraud are the ones against Fox, Mike Lindell, Rudy, and the Cracken

And three cases over in Sumter, where three goofs appear to have voted for Trump both there and in their old home states.

  • Halstead, Sumter #2021-CF-1503
  • Ketcik, Sumter #2021-CF-1505
  • Rider, Sumter #2021-CF-1506

Yes, all three are in the Villages, the expensive trailer park where they had a “white power” golf cart parade, footage of which was later retransmitted by Donald Trump.

This comment has been deemed insightful by the community.
James Burkhardt (profile) says:

Re: Dominion

Courts have a formal order of events. After the lawsuit is filed, and initial motions are made, you reach the ‘motion to dismiss’ stage. At this point one or both side(s) can argue there is no need for fact finding, and the case can be judged solely in the applicable law. The ruling that just came out is on that motion. Discovery happens only after the motion to dismiss stage, because discovery supports fact finding.

Tl;DR: discovery is later in the process.

If you’d read the judges words you might be concerned. The judge has noted that many of the claims are facially false. As a matter of public record, dominion systems were used in counties that voted in favor of trump, completely debunking the idea that dominion was biased for biden. Frankly, if anyone had the evidence of fraud, they’d have used it to end these lawsuits definitively already.

i don’t think fox will get as strong a loss as some will think. If they actually pay a significant fraction of the requested judgement i’ll be surprised. But the Judge noted several times that the public evidentiary record does not support the claim that FOX reporters were reasonable to continue to make factual claims against dominion. The real question is if Dominion can prove Actual Malice as a public figure. And that’s the thing. Not all lawsuits against speech are SLAPP suits. Had fox news listened to the cease and desist and continued the election fraud claims without further impugning dominion (or abusing its editorial discretion by letting guests do so uncritically), there isn’t a lawsuit. I assumed the cease and desist and subsequent retractions would end it. Fox has made claims that should be legally adjudicated. So techdirt supports those claims being adjudicated.

That Anonymous Coward (profile) says:

"Fox therefore may have failed to report the issue truthfully"

Ummm isn’t this their entire business model?

"Fox counters with decisions that, according to Fox, hold the fair report privilege applies to “anticipated” or “forthcoming” lawsuits as well as pending proceedings"

You mean those lawsuits where the lawyer admitted no reasonable person would have taken her legal filings as serious?

Even Jerry fscking Springer was smart enough to clearly label his final thoughts on the events of the show as his opinion, when was the last time y’all saw Editorial Commentary on anything Faux has broadcast?

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