Government

Fox News Gets Benchslapped By DE Judge In Dominion Defamation Suit

Those depositions are gonna be LIT.

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on

fox-news-logoRupert Murdoch’s minions may be able to convince your Meemaw that a caravan of migrants are coming to murder her with critical race theory, but they weren’t able to convince a Delaware judge to toss out Dominion Voting Systems’ defamation lawsuit. In fact, Superior Court Judge Eric M. Davis benchslapped Fox News’ motion to dismiss the case in pretty spectacular fashion.

In March, Dominion filed a 137-page complaint, bolstered by 302 pages of exhibits, detailing the many, many times Fox hosts and guests falsely claimed that Dominion had participated in a scheme to steal the election from Donald Trump. Judge Davis’s denial of the motion to dismiss only runs to 52 pages, but he does spend about 15 of them on crazy shit that Fox personalities were putting on air, even as some of their less deranged counterparts were reporting that there was no credible evidence of fraud.

Here’s a fun little snippet:

Giuliani: Dominion is a company that’s owned by another company called Smartmatic, through an intermediary company called Indra. Smartmatic is a company that was formed…by three Venezuelans who were very close to, very close to the dictator, Chávez of Venezuela and it was formed in order to fix elections. That’s the company that owns Dominion….[A]ll of its software is Smartmatic software….So we’re using a…company that is owned by Venezuelans who were close to – were close to Chávez, are now close to Maduro, have a history, they were founded as a company to fix elections….

Dobbs: It’s stunning. And they’re private firms and very little is known about their ownership, beyond what you’re saying about Dominion. It’s very difficult to get a handle on just who owns what and how they’re being operated. And by the way, the states, as you well know now, they have no ability to audit meaningfully the votes that are cast because the servers are somewhere else and are considered proprietary and they won’t touch them. They won’t permit them being touched.

Literally none of that is true, and, as the court notes, the network was on notice that it wasn’t true, since Dominion sent them multiple letters saying just that.

In addition, the Complaint alleges that several of Fox’s personnel openly disclaimed the fraud claims as false. Yet, certain Fox personnel (e.g., Mr. Dobbs) continued to push the fraud claims. The nearby presence of dissenting colleagues thus further suggests Fox, through personnel like Mr. Dobbs, was knowing or reckless in reporting the claims.

Oh, hai, actual malice!

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In its motion to dismiss, Fox attempted to assert several affirmative defenses including the “neutral reportage” defense, the “fair report” privilege, and the defense of opinion. After observing that the court does not generally consider affirmative defenses in a motion to dismiss, it nonetheless dismantles them one by one.

Having decided as a threshold matter to apply New York tort law, but using Delaware procedural law, the court notes that the New York Court of Appeals doesn’t accept the “neutral reportage” defense. But even if did, that defense is only available in the case of neutral reporting.

“As such, Fox’s reporting must have been neutral, not ‘a personal attack’ on Dominion, to succeed on this defense,” Judge Davis writes. “Dominion’s well-pleaded allegations, however, support the reasonable inference that Fox’s reporting was not accurate or dispassionate.”

So much for “fair and balanced.”

The court was no more receptive to Fox’s attempt to assert the “fair report privilege,” which shields true and accurate reports of official proceedings. The network argues that, although many of the alleged false statements were made before any of the eleventy-seven doomed Kraken suits were filed, they were made in anticipation of litigation, and were thus reports of an official proceeding.

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Survey says? NOPE.

The Court finds that the Complaint’s well-pleaded allegations support the reasonable inference that Fox’s reporting (i) was not fair or true and (ii) did not concern an official proceeding

Whether something is a matter of opinion is an issue of fact for the jury, and anyway “Fox’s news personnel repeatedly framed the issue as one of truth-seeking and purported to ground interview questions in judicial proceedings and evidence.”

So the case moves forward, and Dominion gets to depose Giuliani, Powell, Lou Dobbs, Jeanine Pirro, and Maria Bartiromo. And maybe Lachlan and Rupert Murdoch, too.

Box o’ wine for everyone!

US Dominion, Inc. v. Fox News Network, LLC [Denial of MTD, via WaPo]

Liz Dye lives in Baltimore where she writes about law and politics.

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