exhibit a

Is Fox News Really Doomed?

It certainly appears like they will lose a major lawsuit over election lies.

Photo-Illustration: Intelligencer; Photos: Fox News/Getty Images
Photo-Illustration: Intelligencer; Photos: Fox News/Getty Images

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Shortly after Donald Trump lost the presidential election, two of his lawyers, Rudy Giuliani and Sidney Powell, convened a deranged press conference proclaiming that Trump had “clearly won by a landslide” but that he had been the victim of an elaborate conspiracy. It involved a then-obscure election-technology company named Dominion Voting Systems, which they accused of stealing votes from Trump and flipping them to Joe Biden through the use of an algorithm that had originally been created at the behest of former Venezuelan president Hugo Chavez. Giuliani and Powell had already been peddling this false nonsense all over conservative media, including in appearances on Fox News, but the news conference was apparently too much even for Rupert Murdoch.

“Really crazy stuff. And damaging,” the network’s owner wrote, as he watched the appearance, in one of many highly entertaining internal communications that have become public recently thanks to the lawsuit filed by Dominion against Fox over the network’s allegedly defamatory coverage of the company following the 2020 election. One network executive who was also watching wrote separately to someone, “This sounds SO FUCKING CRAZY btw.” The day before, star host Tucker Carlson told his prime-time colleague Laura Ingraham, “Sidney Powell is lying by the way. I caught her. It’s insane.” None of this, however, prevented Powell and Giuliani from appearing on the network in the subsequent weeks saying the same transparently absurd things to Fox News’ audience.

Thanks in large part to the messages, there is a palpable sense that Dominion’s lawsuit might do serious and irreversible damage to the network — an undeniably significant force in American media and politics, the top-rated cable television network in the country, and home to some of the most influential voices in conservative politics. And most informed analysts I spoke with believe that the company has a good chance of prevailing if they go to trial. But getting from here to there is not easy.

In order for Dominion to win and recover actual damages, the company needs to establish that Fox News broadcast false statements about the company that negatively affected the company’s business. Defamation cases, however, are notoriously hard to win against media companies thanks to broad protections provided by the First Amendment and Supreme Court decisions, which require plaintiffs to prove that the defendant acted with “actual malice.” In this case, that means that Dominion has to demonstrate by clear and convincing evidence that the people responsible for broadcasting the statements either knew that they were false or acted with “reckless disregard” as to the falsity of the claims, even if the statements were technically made by guests rather than hosts. Dominion appears to have amassed a significant amount of evidence on this score, including, most notably, internal communications from on-air personalities, producers, and executives expressing doubts in real time about the claims being made by Powell and Giuliani.

The case is currently scheduled to go to trial next month, but the parties have recently been briefing competing motions for “summary judgment,” asking the presiding judge to rule in their favor based on what they claim are undisputed facts gathered in the course of discovery — in Dominion’s case, the mountain of texts and emails that they have obtained from Fox News. The filings are designed to present and frame those facts in the best possible light for the moving party — a crucially important point that seems to have been lost on the many members of the media who have been treating the filings by Dominion as the forensic product of disinterested fact-gathering and reporting, which they most certainly are not.

Dominion claims, for instance, that Fox News defamed the company “continually” and over “a months-long timeframe,” which sounds terrible but is dubious even by Dominion’s own account. The company is focused on a set of factual assertions presented to viewers largely through interviews with Giuliani and Powell in which they repeated the same false claims from their November 2020 press conference but with no real pushback from the hosts, who, on Dominion’s account, essentially let them say whatever they wanted while also tacitly endorsing the theories by refusing to correct or contextualize the false claims that they were peddling. Fox counters that they were merely covering inherently newsworthy allegations made on behalf of the sitting president.

Altogether, Dominion has singled out 20 episodes of alleged defamation, but with one exception, they all occurred during a roughly month-long period from mid-November to mid-December 2021, mostly on shows hosted by Lou Dobbs, Maria Bartiromo, and Jeanine Pirro. The temporal outlier is an interview that Carlson conducted with MyPillow CEO Mike Lindell in late January 2021 (after Trump supporters stormed the Capitol), during which Lindell briefly claimed to have evidence of fraud by Dominion. Three of the 20 alleged episodes of defamation during this period are not actually on-air segments but tweets from Dobbs.

This was a sliver of Fox News’ output during the period, but by the standards of a case like this, Dominion has identified an unusually large number of allegedly defamatory statements. “If you look at the average defamation case, it’s one instance,” Rebecca Tushnet, a professor at Harvard Law School, told me. “A classic defamation case against a news organization is a single report, and they get yelled at, and at least they pause while they investigate. That doesn’t appear to be the trajectory here.” In its defense, Fox News has stressed that the vast majority of its coverage is not at issue, but as Mary-Rose Papandrea, who teaches law at the University of North Carolina, put it, “It doesn’t really matter [if] the rest of your coverage was great” or that the rest of the programing “did not contain defamatory material.” In many cases, she continued, “there’s one sentence that’s defamatory, and plaintiffs recover on that basis alone.”

One of the most intriguing aspects of Dominion’s lawsuit is the breadth of the company’s position on who was responsible for the statements at issue. The long list includes not just the hosts and show-level producers but people at the highest levels of the network, including CEO Suzanne Scott and president Jay Wallace. Dominion has also pointed the finger at Rupert Murdoch, the chair of parent company Fox Corporation, as well as his son Lachlan, who serves as Fox Corporation’s CEO. Dominion argues that these people all knew that the claims about the company were false and that they could easily have put a stop to the alleged defamation even though they did not necessarily manage the particular segments or shows at issue. Strictly speaking, Dominion can win its case without showing that any of these executives themselves acted with actual malice, but at least as an atmospheric matter, evidence of responsibility for the allegedly defamatory statements at the highest levels of the network is undeniably helpful to the company’s case: It supports the theory that the defamation was intentional on the part of Fox, that there was a business motive behind it, and that it could easily have been stopped.

Dominion’s position is unusually aggressive but, under the circumstances, far from frivolous given the exceptional facts. “We don’t have great examples to draw on when the theory of the case is that [the defendant] institutionally wanted to advance [a particular] narrative,” RonNell Anderson Jones, a former reporter and editor who is now a law professor at the University of Utah, told me. (Like other specialists in media law who spoke with me, Jones found it particularly relevant that Dominion had obtained evidence that Fox News had a business motive for the alleged defamation — to avoid losing viewers to NewsMax.) It has strenuously contested the relevance of the evidence involving the Murdochs given their relatively limited role in Fox News’ on-air content, but like other analysts, Jones described this to me as an “open, litigable question” under the law — meaning that Fox News may very well lose that fight before the presiding judge. If so, that would mean that both men could be forced to take the stand at the trial, which would make a finding of liability even more embarrassing and potentially costly for the network.

Fox News has other arguments in its arsenal, though there are conspicuous weaknesses that are detectable even on paper. The network maintains, for instance, that Bartiromo, who still hosts shows on both Fox News and Fox Business, “testified under oath that she is uncertain about what happened in the election even to this day” and quotes her as saying in a deposition that “I still have not seen a comprehensive investigation as to what took place, and that is why there are still questions about this election.” It likewise argues that Dobbs, who was let go shortly after Trump left office, “believed at the time (and still believes today) that ‘the election was stolen,’” and that “he did not (and still does not) know ‘what happened with the electronic voting companies in that election.’”

This is perfectly fine evidence to cite in opposition to Dominion’s motion for summary judgment, because it would seem to create a dispute between the parties on the crucial factual question of whether the hosts acted with actual malice, but defeating Dominion at this juncture will simply keep the case on track for a jury trial. At that point it will be odd, to put it mildly, for a nominal news network to ask a jury to believe that some of its hosts — people whose job is supposed to include being reasonably intelligent and informed — are, in effect, grossly incompetent. An even-worse legal scenario for Fox News, particularly since Dominion is seeking punitive damages, is that jurors will conclude that these people are lying even to this day.

Much of the Fox News defense comes down to arguing that the network was entitled to air the allegations made by Trump and his lawyers because they were inherently newsworthy, but although there are persuasive arguments for a limited reporting privilege along these lines, the case does not present a particularly compelling vehicle for it. Fox News criticizes Dominion for not having “the courage of its own convictions” and suing “CNN, MSNBC, CSPAN, or any of the myriad outlets that covered the President’s allegations against it,” and they similarly question the fact that Dominion did not “sue Fox News for all of its shows that reported the President’s allegations about Dominion, or even for every show on which Giuliani or Powell recounted them.” Fox News’s actual point is to demonstrate that even Dominion believes that the allegations were worthy of some news coverage. But if anyone seriously thinks about it for more than a few seconds, the argument also underscores Dominion’s position that the Fox News segments at issue were outside the bounds of responsible coverage.

The whole thing adds up to a bizarre defense for a purported news organization to present to a jury — a point that Dominion’s lawyers are likely to hammer at trial. In Fox News’ telling, the hosts — the ones most responsible for the relevant segments, at least — sound like credulous and incompetent dummies. The line producers appear to be lazy, ineffectual, or both. And the executives seem to have no ability or responsibility to intervene or stop anything from happening on air, even if it concerns the most important news story in the country. This is essentially what you are left with after you make your way through all of Fox’s arguments, and though it is coherent — in the sense that you could conclude that nobody at the network acted with actual malice if you believe all of this — it is also very hard to swallow as a factual matter, and it falls far short of what the public deserves from real news outlets.

As a result of all this, most informed analysts believe that Dominion has presented the more compelling case so far, that the case will proceed to trial, and that Dominion has a good chance of prevailing when that happens. Papandrea, for instance, argued that the company has presented “an overwhelming case for actual malice, especially in light of all the testimony that came out in discovery.” Anderson cautioned that we “are working in a relatively shallow pool of comparative examples” but told me that “most folks in the field who follow this agree that Dominion has gathered one of the strongest cases that we have seen in a major media libel suit.” Tushnet was slightly more circumspect — offering that “in American litigation, anything can happen and frequently does” but that Dominion has outlined what “seems to me a quite strong case to go to a jury.”

It is very possible that Fox holds this view as well — and that it is counting on a much lower damages award than the $1.6 billion that Dominion has sought. The calculation of financial damages in corporate litigation is extremely important, for obvious reasons, but it is also a notorious morass of pseudo-economic gibberish, as I can attest from my own experience in the area working on damages analyses in the private sector on behalf of both corporate plaintiffs and defendants. Dominion is principally seeking to recover nearly $1 billion for “the ultimate destruction of its enterprise value” as a result of the alleged defamation or, in the alternative, an award for “lost profits,” which would be much lower. The basis for Dominion’s topline damages calculation is far from clear at this point, but it is worthy of serious skepticism for a variety of reasons — including that it seems to presuppose that a jury will accept the (highly debatable) proposition that the segments and tweets at issue effectively destroyed the company, that these sorts of damages estimates are often revealed to be tenuous once they are fully tested and examined in court, and that lawyers are keenly aware that even an aggressive figure that is ultimately rejected by jurors and courts can exert a valuable anchoring effect on the final outcome as long as the initial number is not too crazy.

The public and political significance of the case could, however, complicate matters for Fox News. In almost every discussion that I have had with other analysts about the case, they have at one point or another noted — correctly — that there is a considerable risk that jurors will be so angered by Fox News’ conduct that they might use a large damages award to send a message or to underscore the network’s moral blameworthiness. “This could be one of those cases where a really big number comes down, said Jeffrey Pyle, a litigator who specializes in media law.

Despite the generally favorable reception that Dominion’s lawsuit has so far received, the company has a long way to go before actually recovering a significant sum of money. The presiding judge is holding a hearing on the pending summary motions next week, and although a complete victory by Fox News seems highly unlikely, it is possible that the judge could narrow Dominion’s case or make it harder to admit into evidence some of the internal communications that have attracted so much media attention. Even if Dominion proceeds to win at trial and obtain a significant jury award, you can expect Fox to mount a considerable post-trial litigation effort at both the trial and appellate court levels to throw out the verdict or significantly reduce the number — a process that could take years to resolve. At the moment, neither party looks interested in settling out of court.

In the meantime, while the parties are hurtling toward trial and Fox News’ mainstream competitors are covering the case with barely concealed Schadenfreude, there is little reason to expect Dominion’s case to topple the network. So far as I can tell, no one familiar with Fox and the Murdochs’ actual financial condition seriously questions whether the network would be able to pay a large judgment and continue operating (with or without the current executive leadership team remaining in place), through some combination of cash on hand at Fox, a loan against future revenues, or an infusion of additional funds from the Murdochs (who are witnesses but not named defendants). The ratings are still good, and this is not the first major scandal that has engulfed the network — or even the most recent one.

The greater threat, at least as a strictly commercial matter, may be the rift that the litigation appears to have deepened between the network and Trump, who still holds considerable sway among conservatives. He lashed out at Rupert Murdoch in response to the testimony disclosed in recent filings, and though the network was ultimately integral to Trump’s election in 2016, that alliance of convenience appears to be in considerable doubt headed into the 2024 primary season. In the end, the risk to Fox News if Trump turns decisively against the network in response to developments in the litigation may be larger than that directly posed by the case itself.

Take it from Carlson. According to a text message disclosed in the litigation, the host privately told a colleague just days before the siege of the Capitol that “I hate him passionately,” and he went on to offer an astute but now-ominous assessment. “What he’s good at is destroying things,” Carlson observed. “He’s the undisputed world champion of that. He could easily destroy us if we play it wrong.”

Is Fox News Really Doomed?