Fox is facing a massive legal battle, and surviving it may be more about damage control than winning in court.
Since 2021, Fox News has been fending off defamation and libel lawsuits over allegations the network knowingly spread lies that the 2020 presidential election was stolen.
The highest-profile legal fight the conservative news network has is with Dominion Voting Systems, the electronic voting machine and software supplier. That company sued Fox in 2021 for $1.6 billion over false claims by Fox hosts during the 2020 election that Dominion helped Joe Biden win a fraudulent election over Donald Trump.
The case is currently in its early stages, when the court reviews evidence to decide whether it can rule in favor of a party without a trial. Arguments are currently scheduled to begin April 17.
But after weeks of damning public evidence against Fox, including texts and emails that implicate on-air personalities as well as top executives, legal experts say there has rarely been such a clear-cut path to victory for a plaintiff in a high-profile defamation case. Even without going to trial, the case could have long-lasting ramifications for Fox News’ remaining credibility, and much of the legwork may have been done by Fox itself.
“This case sets forth more evidence of knowing falsity than most experts in the area are accustomed to seeing in a major media case,” RonNell Andersen Jones, a University of Utah media law professor, told Fortune.
Last month, Dominion made public in a Delaware court filing a remarkable series of internal exchanges involving Fox personalities. Dominion claims the released messages reveal that star on-air broadcasters including Tucker Carlson, Sean Hannity, and Laura Ingraham, as well Fox co-founder Rupert Murdoch, did not believe the claims of election fraud in 2020 that they or their network was peddling at the time.
During a deposition in which Murdoch was asked under oath whether the Fox anchors had endorsed Trump’s stolen election claims, the executive acknowledged they had, the New York Times reported this week.
“I would have liked us to be stronger in denouncing it in hindsight,” he replied.
But Murdoch rejected accusations that Fox News, as a whole, endorsed Donald Trump’s stolen election claims and seemingly distanced himself and the Fox Corporation from the anchors’ statements. When asked if the company at large endorsed the narratives, he responded: “Not Fox. No. Not Fox.”
Legal experts say Murdoch may try to divert some of the blame for the fraudulent statements away from the company and onto the hosts.
“I would guess that there are more than a few people who might suspect that Fox News would try to deflect, and would maybe try to find scapegoats,” Joseph Russomanno, an Arizona State University media law professor, told Fortune.
“A lot of what we saw in Rupert Murdoch’s comments seem to be his attempt to protect the brand of Fox News, to protect the company, and to protect himself while pointing the finger of blame at others,” he added.
Russomanno said the recent evidence, particularly Murdoch’s comments may even suggest that “Fox News is going a long way in helping Dominion prove its case in terms of what has been revealed.” He called it “unusual, if not unprecedented.”
Lie or opinion?
The foundation of Fox’s defense is that the network was reporting on newsworthy claims of election fraud made by Trump, and that biased reporting is protected by the First Amendment.
Fox’s position is that Dominion’s legal interpretation would “prevent journalists from basic reporting,” a Fox spokesperson told Fortune. “According to Dominion, the press is liable for reporting newsworthy allegations made by the sitting President of the United States even if the press makes clear that the allegations are unproven and that many people contest them.”
Dominion has rejected Fox’s defense, arguing that the First Amendment does not apply in this situation. “Dominion is a strong believer in the First Amendment and its protections. As long-settled law makes clear, the First Amendment does not shield broadcasters that knowingly or recklessly spread lies,” a company spokesperson told Fortune.
The issue for Fox is if the plaintiffs can prove the network knew at the time that its statements were false, which would make it a much easier case for Dominion to argue.
“The really important thing to understand is Fox has got a right to be biased,” David Korzenik, a lawyer who specializes in media law and the First Amendment, told Fortune. But he added, “It doesn’t have a right to publish things that it knows to be false or believes to be false.”
The case will likely come down to whether Dominion can prove Fox published false statements with “actual malice,” a precedent established in the 1964 case New York Times v. Sullivan. It requires “public figures” in defamation suits to prove the defendants made statements with “knowledge that it was false or with reckless disregard of whether it was false or not.”
In most defamation cases, plaintiffs typically argue the precedent’s second part—that an accused party acted with disregard of the truth, according to Arizona State’s Russomanno. But the Fox case stands out because of the evidence that lets Dominion argue for the former—that Fox’s hosts were fully aware they were publishing lies.
“In this situation, it is becoming clear through the testimony of Fox itself they knew the information was false and then moved forward and published it,” he said.
Contain the fire
Accusations of defamation and incriminating testimonies have already boosted Dominion’s chances of a successful suit against Fox, but the network’s brand and credibility may have already suffered even without a judge’s ruling.
“[Dominion] has surely succeeded in drawing attention to the behind-the-scenes scramble that happened at Fox News in the aftermath of the election. In that sense, Fox has already lost on some important fronts,” said the University of Utah’s Andersen Jones. She added that the suit has already raised questions as to how far Fox went in perpetuating election denial claims in comments made to its own audience.
“That may itself carry ramifications for the brand. It probably also produces pressure to settle, to avoid even more exposure of this material at a trial,” she said.
Damage to Fox News’ brand and credibility may not do much to turn away its core viewership, which has long been considered more loyal than audiences of other channels, although some viewers may well be deterred from tuning in as often.
“I think there’s a good amount of the viewing population that simply doesn’t care about lies, as long as they’re pro-Trump lies,” Richard Painter, a law professor who served as the White House’s chief ethics lawyer during the George W. Bush administration, told Fortune. “But I don’t think they’re going to hold the larger audience. I think they’re going to lose a good portion of the conservative but moderate group.”
A ruling against Fox could lead to an organizational reshuffling and shareholder blowback, Jeffrey Sonnenfield, the senior associate dean of leadership studies at Yale University who has spent four decades advising CEOs and U.S. presidents on leadership, told CNN this week.
“The board has a duty to remove such officials for proven misconduct,” he said, referring to executives such as Fox News CEO Suzanne Scott. He added that Fox could expect shareholder lawsuits, loss of insurance protections, and even an SEC investigation for “deceptive practices of the board for conspiring to conceal known misconduct.”
Fox News, which accounts for most of the Fox Corporation’s revenue, has long been accused of excessively focusing on sustaining its viewership to maintain profits and to increase shareholder returns, something that may have contributed to its election denialism and may hurt the network’s credibility in the long run, according to Painter.
“I think they’re going to lose that credibility very quickly if they don’t categorically reject shareholder primacy,” Painter said. “They could destroy their business model to the detriment of the shareholders, which is the great irony.”
What happens next for Fox depends on whether Dominion can prove actual malice, if executives like Murdoch are found to be at fault as well as the hosts, and how Fox reacts. But in many ways, some damage to Fox may have already been done.
“This is a defense of containment on how to contain the fire. I don’t think it’s overall likely to prevent Dominion from landing a punch,” Korzenik said. “They may do some containment but they’re not going to stop the fist from landing.”