Fox News lawyers’ defense strategy to combat a voting software firm’s allegation that the conservative cable giant knowingly peddled election fraud lies about the company is starting to fully come to light.
When it comes to Fox hosts, commentators, and guests pushing falsehoods that rigged voting machines “stole” the 2020 presidential election from then-President Donald Trump, Fox attorneys insist that claims those statements were defamatory have “omitted context” of those remarks.
According to NPR, the network’s attorneys filed motions last week asking the judge presiding over Dominion Voting System’s $1.6-billion defamation case to dismiss the lawsuit prior to its trial date this April. Dominion contends that the channel’s executives allowed baseless election conspiracies to air in an effort to appeal to disgruntled MAGA viewers who abandoned Fox after the network called Arizona for Joe Biden.
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While those motions are sealed, supplementary public filings indicate that the defense team’s argument seems to justify the debunked voter fraud claims Fox News stars made about Dominion following the election.
“[T]here is not a single statement for which Dominion can prove every element of its claim for defamation,” Fox attorneys wrote in the filing. Dominion lawyers argue that roughly 115 statements made by Fox hosts and guests shortly after the election were defamatory.
“In those documents, Fox's attorneys offer ‘omitted context’ for the seemingly incendiary remarks by such hosts as Sean Hannity, Jeanine Pirro, Lou Dobbs and Maria Bartiromo, as well as their featured guests, including Trump and his former campaign attorneys Rudy Giuliani and Sidney Powell,” NPR’s David Folkenflik reported. “That context includes assertions that have long since been debunked and rebutted in dozens of court challenges and by local and state election officials from both parties.” (Dobbs’ show was canceled a day after Smartmatic, another voting software company, filed a multi-billion dollar defamation lawsuit against Fox.)
Among the remarks that Fox’s lawyers say lack context are claims that Sharpie markers invalidated ballots cast in Arizona, voter fraud allegations in Michigan, and a sworn deposition from an anonymous witness alleging that Smartmatic had ties to Venezuela and Dominion was attempting to defraud the American election.
All of these accusations were ultimately discredited—some by Fox News itself.
While the network’s defense team doesn’t argue that any of the comments made on air were factually correct, they do suggest that Fox personalities were merely acting in a proper journalistic capacity by asking “questions to a newsmaker on newsworthy subjects” or attempting to “accurately report on pending allegations.”
Liberal media watchdog Media Matters reported last May that Fox News’ law firm was potentially leaning toward this defense strategy. According to open record requests at the time, the legal team appeared to be “fishing for evidence to support its client’s conspiracy theories” about Dominion.
While experts told NPR that the claims made by Fox stars about Dominion were always “outlandish” and “instantly didn’t stand up to the light of day,” Fox lawyers have contended that the network’s hosts were merely engaging in opinion and exaggerated hyperbole. Of course, Fox’s legal team has successfully argued in court that no one believes that anything that Fox News primetime host Tucker Carlson says is factually true.
While Fox is asserting that Dominion will fail to prove the network engaged in “actual malice” toward the company, many legal experts do believe Dominion has a fair chance at winning.
“Fox’s journalists and managers were repeatedly told the stories about the voting machine were false, over a period of weeks,” First Amendment lawyer Lucy Dalglish told NPR. “Quoting the president of the United States and relying on a ‘fair report’ privilege only gets you so far. They didn’t just quote Trump. They doubled down and repeatedly reported and opined that Dominion's systems were faulty.”
Additionally, evidence gathered from Fox News executives and stars could possibly help Dominion clear the notoriously tough “actual malice” legal burden that sinks most media defamation cases.
Fox News chief executive Suzanne Scott, for instance, privately warned colleagues shortly after the Arizona call that “we can’t give the crazies an inch” as Team Trump raged about election fraud, suggesting that she and others knew that these claims were rubbish. Hannity, in a sworn deposition, insisted that he never believed Powell’s wild assertions “for one second.”
