The greatest show Fox News has never put on is about to start.
Imagine a Fox News program that utilizes the talents of the no-nonsense news anchor Bret Baier along with those of the opinion host Tucker Carlson. One that also puts anchor “The Five” mainstays Dana Perino and Jeanine Pirro into the mix, along with business anchor and commentator Maria Bartiromo. One that features possible appearances by Fox News executives like Suzanne Scott, the CEO of the operation, and Jay Wallace, its top news executive. A program that tops it all off with a potential cameo by Rupert and Lachlan Murdoch, two of the controlling shareholders of Fox News’ media-conglomerate parent, Fox Corporation.
If the most popular shows on Fox News Channel generate regular viewership of around 3 million, one has to wonder what a program with such an assemblage might capture.
Barring a last-minute settlement agreement, an obscure voting-technology company will, starting Monday and over the next five or six weeks, give rise to just such a series. All of the aforementioned personalities could appear in a whopping $1.6 billion defamation lawsuit that Dominion Voting Systems has brought against Fox News and Fox Corp. “It makes for great television, and I hope we get to watch every minute,” says Ken Paulson, the former USA Today editor who is director of Middle Tennessee State University’s Free Speech Center, an academic unit that examines issues related to the First Amendment.
At issue in the jury trial, slated to be heard in Superior Court of Delaware, is whether Fox News deliberately amplified conspiracy theories that attributed allegations of vote-rigging in the 2020 presidential election to Dominion, even though many Fox executives and anchors knew full well, or at the very least suspected, they were complete hokum. Multiple authorities have determined that Joe Biden won the election over Donald Trump, but Dominion alleges Fox News caused more than a billion-and-a-half dollars worth of damage when it discussed claims that Dominion had swayed the election, then repeated those statements and refused to engage in efforts to set the record straight. Fox News faces a second defamation suit from Smartmatic, another voting technology firm, that is seeking $2.7 billion in damages.
Some observers wonder if a settlement may not lie in the offing. There is some precedent. Walt Disney in 2017 paid what is believed to be $177 million to settle a defamation case brought against its ABC News by Beef Products Inc., a South Dakota meat producer. ABC News was among several news outlets to report on the safety of a low-cost processed beef-trimmings product from BPI that has been more commonly known as “pink slime.” Disney never retracted the ABC News report but said in a statement that “continued litigation of this case is not in the company’s interests.” Damages could have come to as much as $5.7 billion under South Dakota law. Intriguingly, one attorney representing BPI in the case was Dan K. Webb. He is also representing Fox News in its case against Dominion.
Dominion appears eager for its legal moment. “In the coming weeks, we will prove Fox spread lies causing enormous damage to Dominion,” the company said in a statement. “We look forward to trial.”
The case has already spurred a raft of bizarre disclosures. A cache of depositions, emails and texts has revealed that many Fox producers, anchors and executives were skeptical about the false claims around the election. Some executives believed anchor Maria Bartiromo, in particular, was prone to disseminating wacky statements on her programs and on social media. In a pre-trial deposition, Bartiromo said she still wasn’t sure whether allegations made against Dominion were accurate or not. Rupert Murdoch acknowledged in one deposition that he felt some of his hosts “endorsed” the false claims, and admitted he had the authority to keep lying Trump surrogates who espoused the theories off of Fox’s shows. “I could have. But I didn’t,” he said, according to a Dominion court filing.
Others were caught behind the scenes trying to put distance between themselves and President Trump, a favorite of the Fox News crowd. Tucker Carlson, a conservative focal point and the most-watched single anchor on Fox News, in 2021 texted that he hated President Trump “passionately,” according to text messages made available through pre-trial discovery. “We are very, very close to being able to ignore Trump most nights,” Carlson said, according to court filings. “I truly can’t wait.”
Every minute of the trial won’t be on TV, as Paulson hopes, but the ensuring media coverage and social chatter may create the impression that it is. And while some may watch to see how Fox News navigates this challenge and the public-relations debacle certain to foment around it, others are monitoring whether the travails Fox faces carry over to the broader industry.
“It does impact these questions of when can reporters repeat newsworthy but false allegations made by high public officials,” says Lyrissa Lydskey, a prominent media law scholar based at the University of Florida. “Can they report to us newsworthy but false allegations without fear of crippling defamation liability?”
At first blush, Dominion appears to have significant advantages. Judge Eric M. Davis of Delaware Superior Court, who is overseeing the case, has suggested Fox has withheld evidence to which Dominion was entitled and threatened to appoint an outside attorney to ensure Fox grants access. And he has already ruled that Dominion doesn’t have to prove the statements Fox News repeated were false. The jury will have to decide on whether the company did so with actual malice and, if so, what damages should be awarded.
But proving so won’t necessarily be a foregone conclusion. Showing that anchors and executives spread the falsehoods with deliberation, the current legal standard, is difficult. Fox has argued that Dominion has “cherry picked” statements that will not hold up when put in context. The company’s attorneys will have to hope they can convince the jury that many of the comments already released don’t show knowledge of a mission to pass along the wingnut theories tied to the 2020 election and Dominion. If the attorneys fail to do so, Fox will have to bet they can convince the jury the $1.6 billion the voting technology company is seeking is overblown, and hope to pay out less.
The company has already made a case in pre-trial hearings, offering evidence that Dominion has enjoyed robust results in recent months, well after claims against it were aired on Fox News. One Fox attorney cited “financials that show that Dominion has not been harmed to the extent that their expert has suggested.”
“Dominion’s lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished first amendment rights,” Fox said in a statement. “While Dominion has pushed irrelevant and misleading information to generate headlines, Fox News remains steadfast in protecting the rights of a free press, given a verdict for Dominion and its private equity owners would have grave consequences for the entire journalism profession.”
Most cases of this sort don’t end up generating the payout the aggrieved party seeks, says Lydskey. “It is a common litigation tactic to set your damages really high as an echoing point, not necessarily believing you are going to get all of that.”
If the case doesn’t go Fox’s way, the company would likely appeal and, in doing so, could set a trajectory for a higher court, where a change to current libel laws might become a possibility, says Bob Richards, a professor of First Amendment studies at Penn State’s Bellisario College of Communications. “Any time a high-profile case is made against a news organization, there is always potential for laws to be somehow affected that may in the long run affect all media,” he says.
Some journalism advocates think Fox is getting scrutiny that it deserves. As a news organization, “your obligation is to be as truthful as possible and to take great care when you are affecting someone else’s reputation,” says Paulson. “You destroy your franchise if you recklessly damage other people’s reputation.”
Even though Fox seems poised to fight, it may risk damage to its brand as the court proceedings linger. Each appearance by a Fox executive or personality will likely generate its own separate news cycle and the revelations and testimony will probably pull back the curtain around Fox’s internal procedures and news judgement. Even so, a lot has been made public, and ratings at Fox News — one of the top measures of success at the company — have remained steady and the bulk of the network’s lineup continues to beat rivals MSNBC and CNN handily in terms of overall viewership.
Fox is betting on itself, guessing that its viewers won’t care much for the trial (though on Sunday, Fox News media correspondent Howard Kurtz announced he would be covering the proceedings from Delaware. “It’s been a very rough week for Fox” he told viewers during an on-air appearance). Even so, there is a show, and it will go on — and on, and on, and, perhaps, on. This is the stuff of late-night monologues and “Saturday Night Live” opening sketches. “It looks like they may be in court for quite some time,” says Richards.
