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Defamation cases can be difficult to win, but legal scholars say Dominion Voting Systems has a compelling case against Fox News. 1 [1]Neal, Jeff, Disinformation on trial, Harvard Law Today (Feb. 17, 2021). https://hls.harvard.edu/today/disinformation-on-trial/. Dominion is seeking $1.6 billion in damages, alleging that Fox News harmed its reputation when its’ broadcast falsely claimed that the company was involved in rigging the 2020 presidential election against former President Donald Trump. 2 [2]US Dominion, Inc. v. Fox News Network, LLC, CV N21C-03-257 EMD, 2022 WL 100820, at *7 (Del. Super. Jan. 10, 2022). If the case goes to trial, the outcome may drastically impact the news media landscape.
For Dominion to prevail, the company must show that it was harmed by the false statements that were broadcast on Fox News. 3 [3]US Dominion, Inc. v. Fox News Network, LLC, 2021 WL 5984265, at *21 (Del.Super., 2021). In an ordinary defamation case, a plaintiff must demonstrate the issuance of a false statement that subjects them to public contempt, hatred, or ridicule. 4 [4]Kasavana v. Vela, 100 N.Y.S.3d 82, 85–86 (N.Y. App. Div. 2019). Dominion is seeking $1.6 billion in damages for defamation under a per se analysis. 5 [5]US Dominion, 2022 WL 100820, at *1. Statements are per se defamatory when they harm one’s business or personal reputation, including claims of criminal conduct. 6 [6]50 Am. Jur. 2d Libel and Slander § 141. Dominion will likely also have to prove that Fox News acted with “actual malice,” a high bar that public-figure plaintiffs must meet if the defendant’s statements touched on matters of public concern. 7 [7]“Actual malice is the most demanding fault standard… and generally applies when a public figure plaintiff sues in defamation for statements the defendant made on matters of public concern. Although the appropriate fault standard hinges on further development of the record, the parties accept that actual malice is the relevant standard for resolving the Motion.” US Dominion, 2021 WL 5984265, at *28 n263. To prove actual malice, a public figure plaintiff must prove that the defendant knowingly published a false statement or acted with reckless disregarded for the truth. 8 [8]US Dominion, 2021 WL 5984265, at *28.
In a 137-page complaint filed last year in Delaware Superior Court, Dominion alleged that Fox News “intentionally provided a platform for guests that Fox’s hosts knew would make false and defamatory statements of fact on the air.” 9 [9]Complaint at 95, US Dominion, Inc. v. Fox News Network, (Del.Super., 2021) (CV N21C-03-257 EMD). Dominion also claimed that the network, through its hosts, “had repeated, republished, and endorsed” the election fraud accusations “numerous times on television, online, and on social media,” 10 [10]Id. at 127. reaching millions of television viewers and social media followers. 11 [11]Id. at 6.
Fox News hosts and guests repeatedly discussed allegations that Dominion is a subsidiary of a company affiliated with the late Venezuelan President Hugo Chaves to rig elections. 12 [12]Hosts and guests claimed that Dominion was owned by a parent company named Smartmatic. In fact, Smartmatic is another voting systems manufacturer that competes with Dominion. Smartmatic filed its own defamation suit against Fox News, seeking 2.7 billion in damages. Complaint at 31, US Dominion, Inc. v. Fox News Network, (Del.Super., 2021) (CV N21C-03-257 EMD). Dominion claimed that these statements “impute serious criminal conduct to Dominion and also malign Dominion in the conduct of its business or trade.” 13 [13]Id. at 130. Dominion also stated that Fox News’ conduct resulted in lost profits and forced the company to spend hundreds of thousands of dollars on on-site security to protect its employees from harassment and death threats. 14 [14]Id. at 23-65, US Dominion, Inc. v. Fox News Network, (Del.Super., 2021) (CV N21C-03-257 EMD).
Fox News moved to dismiss the case last year, arguing that it is shielded from liability under the First Amendment, which “absolutely protects press reporting on allegations made by public figures of the highest order.” 15 [15]US Dominion, 2021 WL 5984265, at *16; Def.’s Br. Mot. Dismiss at 6-28, US Dominion, 2021 WL 5984265, at *1. Fox contended that the fair-report doctrine protects a media organization’s reporting on judicial proceedings and government investigations. 16 [16]Id. The news network also asserted that its news hosts and their guests’ opinions about election fraud allegations are protected by the opinion privilege. 17 [17]Id. The court was not convinced. 18 [18]US Dominion, 2021 WL 5984265, at *29. In December 2021, the court denied Fox’s motion to dismiss, concluding that Dominion sufficiently pled its claims, including that Fox acted with actual malice. 19 [19]Id. at 29.
The legal battle has been ramping up in recent weeks. Many of Fox’s top personalities have been deposed, including Tucker Carlson, Jeanine Pirro, and Sean Hannity. 20 [20]See Plaintiffs’ Notice of Deposition of Laura Ingraham, US Dominion, Inc. v. Fox News Network, (Del.Super., 2021) (CV N21C-03-257 EMD); Plaintiffs’ Notice of Deposition of Sean Hannity on August 31, 2022, US Dominion, Inc. v. Fox News Network, (Del.Super., 2021) (CV N21C-03-257 EMD); Plaintiffs’ Notice of Deposition of Tucker Carlson on August 26, 2022, US Dominion, Inc. v. Fox News Network, (Del.Super., 2021) (CV N21C-03-257 EMD); Plaintiffs’ Amended Notice of Deposition of Jeanine Pirro on August 23, 2022, US Dominion, Inc. v. Fox News Network, (Del.Super., 2021) (CV N21C-03-257 EMD). Fox’s legal team has deposed several Dominion executives, including CEO John Poulos. 21 [21]Defendant Fox News Network, LLC’s Second Amended Notice of Deposition of Dominion’s CEO, John Poulos on October 20, 2022, US Dominion, Inc. v. Fox News Network, LLC, CV N21C-03-257 EMD (89954908). Summary judgment briefings are due in February and a trial is scheduled for April. 22 [22]Recommendation of the Special Master Concerning Expert Witness Deadlines, US Dominion, Inc. v. Fox News Network, (Del.Super., 2021) (68327699).
The “actual malice” standard for defamation cases was established in the landmark Supreme Court case, New York Times Co. v. Sullivan. 23 [23]New York Times Co. v. Sullivan, 376 U.S. 254 (1964) In 1960, L.B. Sullivan, a police commissioner in Alabama, sued the New York Times for defamation after the newspaper published an ad that criticized police conduct during civil rights protests. 24 [24]Id. at 256. The ad contained some false statements. 25 [25]Id. at 264. After Sullivan won in Alabama courts, the New York Times appealed to the U.S. Supreme Court. 26 [26]Id. at 256.
The Supreme Court found that the newspaper did not act with actual malice and reversed the Supreme Court of Alabama’s decision, calling it “constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.” 27 [27]Id. at 264. Three years after Sullivan, the Supreme Court ruled that any public figure, not just politicians, must prove actual malice in a defamation suit against a news organization. 28 [28]Joshua Azriel & Charles Mayo, Fifty Years After New York Times Co. v. Sullivan and Forty Years After Gertz v. Welch: How These Twentieth Century Supreme Court Rulings Impact Twenty-First Century Online Social Media Libel Claims, 20 B.U. J. Sci. & Tech. L. 191 (2014). Under the standard set by Sullivan, a news organization acts with actual malice when it publishes false information with the knowledge that it was false or with reckless disregard for the truth. 29 [29]US Dominion, 2021 WL 5984265, at *28.
The Delaware Superior Court judge who denied Fox News’s motion to dismiss found that “the Complaint alleges facts that Fox made the challenged statements with knowledge of their falsity or with reckless disregard of their truth.” 30 [30]Id. If this case goes to trial, Dominion will likely have to prove with clear and convincing evidence that Fox News knew or should have known the election fraud claims were false. 31 [31]Id.
Dominion cites several instances where they contacted Fox News executives, reporters, and producers, and circulated emails– titled “SETTING THE RECORD STRAIGHT: FACTS & RUMORS”– that included links to independent sources with information disproving the false election claims. 32 [32]Id. During discovery, part of Dominion’s focus has been on finding communications that reveal what Fox News hosts knew at the time the fraud accusations aired on their programs. 33 [33]This past October, Dominion’s legal team zeroed in on emails and text messages from Jeanine Pirro and asked the court to compel her to sit for a second deposition to answer questions about those communications because her “conduct and role in the spread of this disinformation lies at the heart of Dominion’s claims.” Dominion’s Mot. to Compel Ms. Pirro’s Testimony Regarding Relevant Texts with Certificate of Service, US Dominion, Inc. v. Fox News Network, (Del.Super., 2021) (CV N21C-03-257 EMD).
“I think we are at a time in U.S. history and world history of losing any ability as a civilization to distinguish between truth and falsity,” Rodney Smolla, a lawyer representing Dominion Voting Systems said in a recent interview. 34 [34]Peters, Jeremy, First Amendment Scholars Want to See the Media Lose These Cases, New York Times (March 13, 2022). https://www.nytimes.com/2022/03/13/business/media/fox-news-first-amendment-sullivan.html?smid=url-share. “And one of the few legal avenues in which civilized countries have attempted to distinguish between truth and falsity is defamation law.” 35 [35]Id. This lawsuit could have broad implications for the news media and free speech, especially at a time when defamation suits are on the rise in the United States. 36 [36]Freeman, George, An increase in libel suits shows why we need to keep protections for the news media, Washington Post (March 8, 2022). https://www.washingtonpost.com/opinions/2022/03/08/libel-suit-increase-times-v-sullivan-news-media/; Peters, Jeremy, First Amendment Scholars Want to See the Media Lose These Cases, New York Times (March 13, 2022). A win for Dominion and similar plaintiffs could further deter media organizations from peddling false information if they have to face legal and financial consequences. 37 [37]Smartmatic, another voting systems company, also sued multiple media entities and allies of former president Donald Trump in connection with election fraud accusations. Corse, Alexa, Dominion Sues Newsmax, One America News Network, Others Over Election Claims, The Wall Street Journal (Aug. 10, 2021). https://www.wsj.com/articles/dominion-sues-newsmax-one-america-news-network-others-over-election-claims-11628599768.
Defamation lawsuits like Dominion’s can be a double-edged sword if they reach higher courts. 38 [38]Torres-Spelliscy, Ciara, Dominion Voting’s Libel Suits, the First Amendment, and Actual Malice, Brennan Center for Justice (Mar. 28, 2022). https://www.brennancenter.org/our-work/analysis-opinion/dominion-votings-libel-suits-first-amendment-and-actual-malice. Dominion CEO John Poulos has emphasized that the company has “no secret endgame to limit anyone’s First Amendment right to free speech” with its defamation lawsuits against conservative media outlets. 39 [39]Higgins, Tucker, Dominion and Smartmatic have serious shot at victory in election disinformation suits, experts say, CNBC (Feb. 24, 2021). https://www.cnbc.com/2021/02/24/dominion-smartmatic-defamation-cases-credible-experts.html. Nevertheless, if Dominion’s lawsuit reaches the Supreme Court, it could change the long-standing press protections that were defined in Sullivan. 40 [40]Torres-Spelliscy, supra note 41.
At least two Supreme Court Justices have voiced their skepticism of Sullivan. 41 [41]Id. In 2019, Justice Clarence Thomas called for the court to “reconsider our jurisprudence in this area” because “[s]tates are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.” 42 [42]Collins, Ronald, First Amendment News 201 Justice Thomas Targets Sullivan Ruling — a “policy-driven decision masquerading as constitutional law”, FIRE (Feb. 20, 2019). https://www.thefire.org/first-amendment-news-thomas-targets-sullivan-constitutional-law/. Two years later, Justice Neil Gorsuch wrote that Sullivan “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.” 43 [43]Berisha v. Lawson, 210 L. Ed. 2d 991 (July 2, 2021).
Even if the case does not reach the Supreme Court, First Amendment advocates worry that a victory for Dominion and other similar plaintiffs could contribute to an increase in the weaponization of libel laws used to target political opponents, critics, or legitimate news reporting. 44 [44]Peters, Jonathan, Dominion’s Lawsuit is No Slam Dunk—But Neither is Fox News’ Defense, Vanity Fair (Sept. 22, 2022). https://www.vanityfair.com/news/2022/09/dominion-fox-news-lawsuit-2020-election; Are Defamation Lawsuits Being Used to Rein in Disinformation Spread by News Outlets? First Amendment Watch at New York University (Feb. 16, 2021). https://firstamendmentwatch.org/are-defamation-lawsuits-being-used-to-rein-in-disinformation-spread-by-news-outlets/. These fears may be overblown because the “actual malice” standard will continue to pose a serious hurdle for defamation plaintiffs. 45 [45]Sternberg, Bill, Fox News’ potentially expensive embrace of ‘Stop the Steal’, The Free Speech Center (April 22, 2022). https://www.mtsu.edu/first-amendment/post/2812/fox-news-potentially-expensive-embrace-of-stop-the-steal. Despite the concerns over the larger impact of Dominion’s case, First Amendment experts seem to agree on one fact: Dominion has laid out one of the strongest defamation cases they have seen in a long time. 46 [46]Henderson, Alex, “Dominion has a very strong case against Fox News” and other right wing media outlets: report, Salon (July 5, 2022). https://www.salon.com/2022/07/05/dominion-has-a-very-strong-case-against-fox-news-and-other-right-wing-media-outlets-report_partner/; Cooper, Anderson, Dominion Voting Systems CEO speaks out against conspiracy theories, CBS News/60 Minutes (Oct. 23, 2022). https://www.cbsnews.com/news/dominion-voting-systems-ceo-machines-conspiracy-theories-60-minutes-2022-10-23/
Written by: Ali Rawaf
Ali is a 2024 J.D. Candidate at Brooklyn Law School
