'Bottomless journalistic misfeasance': Media critic dismantles Fox News' 'cherry-picking' in Dominion case

05 April 2023

More than once, Fox News has accused Dominion Voting Systems of "cherry-picking" in its $1.6 billion defamation lawsuit against the right-wing cable news outlet. Dominion, Fox News argues, has presented "cherry-picked statements" as evidence and is overlooking the big picture.

But Washington Post media critic Erik Wemple, in an opinion column published on April 5, challenges Fox News' "cherry-picking" claims and emphasizes that Dominion's evidence shows a pattern of frequent "journalistic misfeasance."

In its lawsuit, Dominion alleges that it was defamed when Fox News promoted the false, repeatedly debunked conspiracy theory that Dominion's voting equipment was used to help now-President Joe Biden steal the 2020 election from then-President Donald Trump. Dominion has also filed defamation lawsuits against Newsmax TV, One America News (OAN), attorney Sidney Powell and MyPillow CEO Mike Lindell for promoting that bogus conspiracy theory.

On February 16, Fox News claimed, "Dominion has mischaracterized the record, cherry-picked quotes stripped of key context, and spilled considerable ink on facts that are irrelevant under black-letter principles of defamation law." And on February 27, Fox News claimed that Dominion "mischaracterizes the facts by cherry-picking soundbites, omitting key context, and mischaracterizing the record."

Then, on March 8, Fox News said that Dominion had "cherry-picked statements from people who have nothing to do with the specific statements it challenges as defamatory."

But Wemple stresses that the information presented by the company in Dominion Voting Systems v. Fox News is far from "cherry-picking" and "speaks to wider considerations" about the cable news channel.

"Dominion's complaint spans nearly 140 pages, with 300 more in exhibits; more than 700 exhibits back up Dominion's arguments for summary judgment; oral arguments for summary judgment stretched over two days, yielding transcripts of some 450 pages,” Wemple explains. “The court schedule sets aside six weeks for the trial. What's driving all this? The seemingly bottomless supply of journalistic misfeasance at Fox News — the contradictions between what network talent believed and what they reported; the shaming of people who dared to fact-check claims from Trumpworld that the 2020 election was stolen; the network's reaction — or non-reaction — to more than 3000 e-mails from Dominion correcting untruths on Fox News airwaves. Discovery in the case has produced exhibits consisting of e-mails, texts and other documents substantiating all of these things."

Thanks to the U.S. Supreme Court, defamation is extremely difficult to prove. In the 1964 case New York Times v. Sullivan, Chief Justice Earl Warren (a Republican appointee of President Dwight D. Eisenhower) and his colleagues unanimously ruled that defamation has to involve "actual malice." And Dominion will need to meet that tough standard in its lawsuit against Fox News.

But whatever the case's ultimate outcome will be, Wemple points out that Dominion has offered tons of evidence for the jurors to consider.

"Fox News has spent its entire 26 years picking facts and developments and presenting them as balanced news coverage," Wemple writes. "It has picked Benghazi cherries, Obama cherries, Clinton cherries, social-justice cherries, crime cherries, welfare cherries, Soros cherries and many others. Any tidbit that casts its ideological enemies in an unfavorable light gets top billing; the other stuff, you'll have to find on other stations."

Wemple continues, "So, there's value in watching Fox News retreat again and again to its fruity mantra. This is an institution squirming in its own orchard of self-contradiction — a comeuppance with no expiration date."

Read Erik Wemple's full Washington Post opinion column at this link (subscription required).

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