Fox News On Its Way To Finding Out What ‘Actual Malice’ Means In Dominion’s Defamation Lawsuit

I've been meaning to cover this for a few days now, but it's finally off the backburner! And back on the afterburner! I have no idea what any of that means other than this is bad, bad, incredibly bad news for Fox News and (possibly) its parent corporation.

Donald Trump and his voting bloc refused to accept the results of the 2020 election. Several members of the voting bloc decided insurrection was the answer, raiding the Capitol building in hopes of preventing the election results from being certified.

Plenty of others chose not to go the Instant Federal Crime route, spending their time engaging in frivolous lawsuits and saying plenty of ridiculous things on live TV. Fox News decided it needed to HOST ALL THE THINGS! So did other far right entertainment outlets, like OAN (One American News) and whatever it is the Pillow King of Shitcago is doing with what's left of his money.

One of the prime targets for election deniers was Dominion Voting Systems, which ridiculous people (including lawyers who fronted for Trump during his lame duckwork) claimed stole" the election from The Donald via chicanery no one ever found any evidence of.

In return, they were sued by Dominion. Dominion sued Rudy Giuliani, self-proclaimed kraken" Sidney Powell, Newsmax, OAN, Fox News (and its parent company), Mike Lindell (founder of MyPillow), and the head of Overstock.com, Patrick Byrne - the last of which saw him resigning as CEO after firing up an affair with a Russian spy.

Those who smeared Dominion during their stolen election" electioneering are not finding it easy to escape these libel suits. A New York court has allowed the suit against Rudy Giuliani to proceed. Another court said the same thing about the suit against former Trump lawyer, Sidney Powell, despite her no one takes me seriously" counterarguments.

In late 2021, a Delaware federal court said Dominion's suit against Fox News and Fox Corp. can continue. It has rolled forward. And it has picked up considerable steam, thanks mostly to Fox News and its inability to handle the truth.

Here's what's happening to Fox News right now: it's about to become one of the very, very few news organizations to find out what the actual malice" standard means - the standard erected all the way back in 1964 in the New York Times v. Sullivan ruling that increased First Amendment protections for defamation of a public figure. It erected a new standard called actual malice." It has nothing to do with personal animus and everything to do with not deliberately making false claims. This raised the bar for litigants who just wanted an easy way to silence critics. Since then, it has proven crucial in countless bullshit defamation lawsuits brought by angry people who didn't like substantially true" things being said about them.

Reckless disregard for the truth" should be Fox News' new slogan, at least according to this opinion, which takes all the damaging internal Fox communications Dominion has secured and turns them into an extremely actionable defamation claim. You don't often see something this clear-cut in defamation suits brought against news agencies. But Fox crossed the line repeatedly to give viewers what they wanted, rather than anything approaching the truth. (h/t Chance the Lawyer, who also has a short (but great) thread over at Mastodon on the ruling)

The ruling [PDF] tears into Fox News, its figureheads, its talking heads, and the people above them who enabled all of this. It's a terrific read for anyone who's not a defendant. It's a horrifying read for the defendants, who aren't left with much to defend themselves with.

As the court notes, Fox News Network (FNN) was one of the first to call the election for Joe Biden. It received considerable backlash for doing that, including from the deposed president himself. That backlash apparently prompted it to make a 180-degree turn and start embracing every conspiracy theory and theorist it could book to dispute the election it had already called. When it decided to stop handling facts and instead court outlandish claims about stolen" elections, it rolled over the Sullivan line and into libel country - all in hopes of keeping viewers from wandering off to OAN and Newsmax.

Fox News' own fact-checking team found no evidence of widespread voter fraud or any of the outlandish accusations against Dominion, which included allegations it had switched votes" and was linked to (depending on who Fox anchors asked) a Clinton foundation, the Feinstein family, or the Pelosi family. These determinations were ignored. So were communications from Dominion, offering evidence of its reliability, as well as its inability to steal" elections.

Fox Corp. executives knew this. The fact-checking team knew this. Anchors and hosts knew this. Internal communications show plenty of people were aware election fraud hadn't occurred. Some even expressed their concerns about Fox News' focus on this false narrative. And yet, Fox News decided to push Trump's false narrative, using Dominion as a punching bag for bullshit election fraud claims.

All of this adds up to defamation. Sullivan and its actual malice" standard can't save Fox. It clearly demonstrated a reckless disregard for the truth."

The whole narrative relayed by the court in its decision is worth reading. It will make you angry and depressed in equal parts. But here's where the court lays the hammer down. All emphasis in the original:

While the Court must view the record in the light most favorable to Fox, the record does not show a genuine issue of material fact as to falsity. Through its extensive proof, Dominion has met its burden of showing there is no genuine issue of material fact as to falsity. Fox therefore had the burden to show an issue of material fact existed in turn. Fox failed to meet its burden. The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true.

None of the Statements relating to Dominion... are true." That's defamation, folks. That's about as clear as it gets. All that's left to argue is which defendants can still plausibly claim they weren't aware of the facts before they started talking. And the court still needs to determine whether Fox Corporation can be held directly accountable for the actions of its so-called news agency, Fox News Network.

Summary judgment on pretty much everything goes to Dominion. And Fox News Network is probably going to make history as one of the first legally-culpable-for-libel news networks" in the history of First Amendment case law.

The record is clear. FNN, as a network, broadcasted the Statements. In other words, FNN published the Statements by broadcasting the Statements to FNN's viewers. [...] FNN is not a passive entity. FNN controls what is broadcast on its various networks. FNN does this through its employees as agents of FNN. Thus, regardless of who within FNN is responsible for publication, FNN did in fact publish the statements to its viewers.

Fox chose ratings over the truth. It paid off in the short run. But the long run appears to belong to Dominion.

The court does not grant judgment on the actual malice" claims. Not yet. These claims must go before a jury. But the jury (and Dominion) get a head start: the court says the statements Dominion is suing over are defamation per se, the sort of statements that would so obviously result in harm to Dominion that it doesn't need to bother proving harm to the court. This raises the limits on damages, which means Fox News and its parent company may be regrouping to see if they can buy their way out of this lawsuit.