Faux News? Dominion Voting Systems Sues Fox for Defamation Over False Election Claims

Christian GloverNews & Insights

By Christian Glover

Fox News Network (“Fox”) is one of the most watched cable news networks in America.[1] In November 2020, a record-breaking 14 million viewers watched Fox announce the presumptive presidential nominee on election night.[2] The election’s outcome rested on the results of a handful of swing states, including Arizona.[3] After Fox became the first network to announce Joe Biden’s victory in Arizona––all but guaranteeing him as the next President of the United States––many viewers abandoned Fox in favor of more partisan stations that catered to former President Donald Trump’s unproven theory that the election was rigged.[4] Based on Fox’s attempts to bring back its audience following this exodus, Fox now stands accused of promoting Mr. Trump’s claims of a rigged and stolen election.[5] The rigged election theory was based in part on the unsubstantiated assertion that Dominion Voting Systems (“Dominion”), a Delaware-based voting machine company, somehow manipulated tallies to favor then-presidential nominee Joe Biden.[6] In its defamation lawsuit, Dominion claims that Fox’s publicized falsehoods harmed its business reputation.[7] Fox counters that it was merely publicizing newsworthy statements from third parties.[8]

According to Dominion’s complaint, Fox originally advanced the rigged election theory after Trump disparaged the news company on Twitter and encouraged viewers to switch to competitors that validated his election conspiracies.[9] After Trump’s tweets, Fox Corporation’s stock fell 6%, with financial analysts attributing the decline to Trump’s support for rival networks like Newsmax and One America News Network.[10] Afterward, Fox allegedly promoted the theory that the election was stolen despite independent audits, hand recounts, and several swing-state election officials all re-confirming the election results.[11] Fox broadcasted these claims via its most popular on-air personalities, including Tucker Carlson, Sean Hannity, and Jeanine Pirro.[12] Notably, Dominion machines were used in 28 states, including several contested battleground states.[13] Fox publicized Trump legal advisor Sidney Powell’s claim that Dominion used algorithms in these states to calculate the numbers they needed to flip votes from Trump to Biden.[14] Fox’s post-election coverage garnered significant attention; indeed, Fox proclaimed that its overall election coverage reached more than 100 million “unique” visitors through its digital platforms including Facebook and Instagram.[15]

Dominion claims that Fox’s statements were defamatory.[16] According to Dominion’s complaint, Fox falsely claimed that: “(1) Dominion committed election fraud by rigging the 2020 Presidential Election; (2) Dominion’s software and algorithms manipulated vote counts in the 2020 Presidential Election; (3) Dominion is owned by a company founded in Venezuela to rig elections for the dictator Hugo Chavez; and (4) Dominion paid kickbacks to government officials who used its machines in the 2020 Presidential Election.”[17] Dominion alleges that even after Fox was put on notice about the dubious veracity of these claims,[18] Fox continued to promote them for profit.[19] Dominion further alleges that Fox disseminated these falsehoods to its audience globally, damaging both Dominion’s reputation and business.[20] Dominion is seeking $1,600,000,000 in damages.[21]

To prevail in a defamation lawsuit under Delaware law, the plaintiff “must plead and ultimately prove that: 1) the defendant made a defamatory statement; 2) concerning the plaintiff; 3) the statement was published; and 4) a third party would understand the character of the communication as defamatory.”[22] Additionally, in its ruling in the landmark case New York Times Co. v. Sullivan,[23] the Supreme Court established that public figures must also show that the defendant made the false statement with “actual malice.”[24] The Supreme Court held that actual malice requires knowledge that the statement was false or that there was “reckless disregard” for the truth.”[25]

Fox makes two main arguments that Dominion’s defamation claim is meritless. First, Fox asserts that the challenged statements are not actionable for various reasons. Fox contends that its coverage and commentary were all newsworthy allegations––not defamatory statements.[26] Additionally, Fox argues that fair-doctrine principles embodied both in the First Amendment and New York’s Civil Rights Law § 74 protect reports on official investigations and proceedings.[27] New York’s law contains privileges in libel suits, stating that “[a] civil action cannot be maintained against any . . . corporation, for the publication of a fair and true report of any . . . official proceeding . . . .”[28] Finally, Fox maintains that its statements are “opinion[s], which are fully protected by . . . the First Amendment.”[29]

Second, Fox argues that Dominion lacks clear and convincing evidence of actual malice. To prove actual malice, the evidence must “instantly tilt the evidentiary scales in the affirmative when weighed against the evidence [the defendant] offered in opposition.”[30] Fox asserts that Dominion has failed to show that the network’s statements were made or published with “subjective knowledge that it was false or serious doubt that it was true.”[31] Under Sullivan, the subjective “state of mind [must] be brought home to the persons in [the] organization having responsibility for the publication [of each statement].”[32]

Thus far, several discovery documents have shown top executives criticizing the election fraud claims. Fox CEO Suzanne Scott wrote an email discussing primetime programming, stating that the false election claims “ha[d] to stop now.”[33] Additionally, Fox Corporation CEO Rupert Murdoch regarded Trump adviser Rudy Giuliani’s allegations as “terrible stuff [that was] damaging everybody . . . [p]robably hurting us too.”[34]

Dominion’s largest hurdle appears to be proving that Fox published statements with actual malice. Delaware Superior Court Judge Eric Davis, presiding over the case, recently denied Fox’s motions for summary judgment, paving the way for a jury trial.[35] Additionally, Judge Davis granted in part and denied in part Dominion’s motion for summary judgment.[36] Judge Davis granted summary judgment for Dominion as to the falsity of Fox’s statements, writing it was “CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true.”[37] However, while he agreed that the network published the false statements, he raised doubts regarding whether Fox Corporation could be found responsible for its subsidiary’s actions.[38] Lastly, he denied summary judgment on the question of whether Fox’s actions constituted actual malice.[39]

The outcome of this case will have significant implications on First Amendment press rights and future application of Sullivan’s “actual malice” standard. If Dominion prevails, courts may become more open to holding news organizations liable for promoting false statements they know to be false (or which they promote with reckless disregard for their truthfulness). If Fox prevails, news organizations may feel emboldened to broadcast controversial political statements irrespective of their merits. Whatever the outcome, this case will set the scale for how news organizations balance news integrity with free speech.

UPDATE 4/19/23:

Dominion and Fox ultimately settled their dispute mere minutes before they were set to begin trial.[40] Although the issues described above remain unaddressed, Fox faces a similar lawsuit from another voting technology company, Smartmatic USA Corp.,[41] leaving the door open for these questions to be answered in the near future.

[1] Leading Cable News Networks in the United States in November 2022, by Number of Primetime Viewers, Statista, https://www.statista.com/statistics/373814/cable-news-network-viewership-usa (last visited Mar. 20, 2023).

[2] Brian Flood, Fox News Election Night 2020 Coverage Draws 14 Million Viewers, Breaking All-Time Record, Fox News (Nov. 4, 2020), https://www.foxnews.com/media/fox-news-election-night-ratings-all-time-record-update.

[3] Craig Gilbert, Election 2020: All Eyes Will Be on These 6 States on Election Day. Here’s What We Know, USA Today (Nov. 2, 2020), https://www.usatoday.com/in-depth/news/politics/elections/2020/11/02/battleground-states-election-michigan-wisconsin-pennsylvania-north-carolina-florida-arizona-voting/6039605002/.

[4] Helen Coster & Lisa Richwine, Trump Campaign Attacks Fox News Polling Expert Who Called Arizona for Biden, Reuters (Nov. 5, 2020), https://www.reuters.com/article/usa-election-fox-news/trump-campaign-attacks-fox-news-polling-expert-who-called-arizona-for-biden-idINL1N2HR2F5.

[5] David Bauder, ‘Weak Ratings Make Good Journalists Do Bad Things’: Fox News Panic Over Trump’s Loss Doing Bad Numbers Laid Bare in Court, Fortune (Feb. 18, 2023), https://fortune.com/2023/02/18/fox-news-dominion-lawsuit-donald-trump-2020-loss-bad-ratings-rupert-murdoch.

[6] Dareh Gregorian & Jane C. Timm, Dominion: Fox News Needs to ‘Retract the Lies and Tell its Audience the Truth’, NBC News (Mar. 8, 2023), https://www.nbcnews.com/politics/donald-trump/dominion-fox-news-needs-retract-lies-2020-election-rcna74041.

[7] See Compl., Fox Dominion, Inc., Dominion Voting Systems, Inc. and Dominion Voting Systems Corp. v. Fox News Network, LLC at 3-4.

[8] See generally Fox Dominion, Inc., Dominion Voting Systems, Inc. and Dominion Voting Systems Corp. v. Fox News Network, LLC and Fox Corp., Opp’n to Pl.’s Mot. for Summ. J., Case No. N21C-11-082 EMD.

[9] Compl. at 26.

[10] Matthew Fox, Fox Corp. Tumbles 6% as Trump Retweets Support for Rival Networks Newsmax and OANN, Business Insider (Nov. 13, 2020), https://markets.businessinsider.com/news/stocks/fox-stock-price-president-trump-retweets-support-for-rival-networks-2020-11-1029798530.

[11] Compl. at 2.

[12] Id. at 6.

[13] Id. at 24.

[14] Id. at 96.

[15] Fox News Digital Scores Best November in its History, Fox News (Dec. 22, 2020), https://press.foxnews.com/2020/12/fox-news-digital-scores-best-november-in-its-history.

[16] See generally, Compl.

[17] Id. at 2.

[18] Id. at 3.

[19] Id.

[20] Id. at 3-4.

[21] Id. at 136.

[22] Doe v. Cahill, 884 A.2d 451, 463 (Del. 2005).

[23] In Sullivan, the New York Times published an advertisement criticizing the Montgomery, Alabama police for mistreatment of protestors during the 1960s civil rights movement. The Montgomery police commissioner, L.B. Sullivan, sued the New York Times for libel. The United States Supreme Court unanimously decided that the advertisement was not defamatory because there was no proof of actual malice. By establishing an actual malice standard, the court aimed to reduce potential liability in similar suits and to protect the freedom of the press by frustrating efforts to suppress critical coverage of public officials. New York Times Co. v. Sullivan, 376 U.S. 254 (1964); the Supreme Court has since extended this standard to include public figures more broadly. See e.g., Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967).

[24] New York Times, 376 U.S. at 280 (1964).

[25] Id.

[26] Opp’n at 43.

[27] Id. at 67.

[28] N.Y. Civ. Rights Law § 74.

[29] Opp’n at 73.

[30] Id. at 82; see e.g., Colorado v. New Mexico, 467 U.S. 310, 316 (1984).

[31] Opp’n at 78; see e.g., Page v. Oath Inc., 270 A.3d 833, 850 (2022).

[32] New York Times, 376 U.S. at 287 (1964).

[33] Jeff Montgomery, Unsealed Fox Docs Show Dominion Vote Fraud Claim Doubts, Law360 (Mar. 20, 2023), https://www.law360.com/media/articles/1591146?nl_pk=3e81eb3e-46b5-4a3e-bad7a6dc1b1fe7b6&utm_source=newsletter&utm_medium=email&utm_campaign=media&utm_content=2023-03-30&nlsidx=0&nlaidx=2.

[34] Id.

[35] See generally Fox Dominion, Inc., Dominion Voting Systems, Inc. and Dominion Voting Systems Corp. v. Fox News Network, LLC and Fox. Corp., Mot. for Summ. J. Decision, Case No. N21C-03-257 EMD.

[36] Id.

[37] Id. at 43.

[38] Id. at 48.

[39] Id. at 49.

[40] David Folkenflik & Mary Yang, Fox News Settles Blockbuster Defamation Lawsuit with Dominion Voting Systems, NPR (Apr. 18, 2023), https://www.npr.org/2023/04/18/1170339114/fox-news-settles-blockbuster-defamation-lawsuit-with-dominion-voting-systems.

[41] Jack Queen, Fox Resolves Dominion Case, but $2.7 billion Smartmatic Lawsuit Looms, Reuters (Apr. 19, 2023), https://www.reuters.com/legal/fox-resolves-dominion-case-bigger-election-defamation-lawsuit-looms-2023-04-19/.