Why Rupert Murdoch’s statements alone may not torpedo Fox News in Dominion's defamation lawsuit: media critic

01 March 2023

Fox News' Rupert Murdoch had some damning things to say about his own employees in a deposition for Dominion Voting Systems' $1.6 billion defamation lawsuit against the right-wing cable news outlet. During a deposition, Murdoch acknowledged that some of Fox News' opinion hosts were "endorsing lies" about the 2020 election during the lame duck period of late 2020 and early 2021.

Dominion has filed lawsuits against not only Fox News, but also, Newsmax TV, One America News (OAN), attorney Sidney Powell and MyPillow CEO Mike Lindell for promoting the false, thoroughly debunked conspiracy theory that Dominion’s voting equipment was used to help President Joe Biden steal the election from former President Donald Trump. And Dominion, in the Fox lawsuit, has presented, as evidence, actual text messages and e-mails from Fox opinion hosts (including Tucker Carlson) who came out and said that Powell's claims about Dominion were total nonsense.

Many critics of Fox News are hoping that Murdoch's statements during that deposition will sink the right-wing cable news outlet and its sister channel Fox Business in the Dominion case. Murdoch's statements certainly paint an ugly picture of Fox News, but according to Washington Post media critic/opinion columnist Erik Wemple — himself a frequent Fox News detractor — those statements alone may not be enough to sink the station from a defamation standpoint.

In its lawsuits against Fox News and others, Dominion must show defamation according to the standard that the U.S. Supreme Court laid out in New York Times v. Sullivan back in 1964. In that unanimous decision, the late Chief Justice Earl Warren (a Republican appointee of GOP President Dwight D. Eisenhower) and eight colleagues ruled that defamation must involve "actual malice." Sloppy or careless reporting, according to the High Court's Sullivan standard, does not constitute actual malice. Nor does inflammatory, over-the-top commentary.

Former Alaska Gov. Sarah Palin, a Republican, sued the Times for defamation and lost because her attorneys could not show actual malice.

In a February 28 column, Wemple emphasizes that proving defamation is a steep uphill climb for plaintiffs. And he doesn't believe that Murdoch's comments alone show hard proof of defamation.

Wemple explains, "As The Post and other news outlets have reported, Fox Corp. patriarch Rupert Murdoch admitted in a deposition that Fox News hosts 'were endorsing’ lies that the 2020 presidential election was stolen from President Donald Trump…. Murdoch’s comments are: (1) true, as anyone who watched Fox News after the election can attest, (2) scandalous, considering that Murdoch could well have acted to stop such atrocities, and (3) likely to have a marginal impact on Dominion Voting Systems' defamation lawsuit against Fox News. U.S. defamation law requires a lot more than an embarrassing post hoc admission by a network mogul…. To prevail in court, Dominion needs to prove that Fox News proceeded with actual malice, meaning that Fox knew the falsity of statements it was broadcasting or made them with reckless disregard of their truth."

According to Wemple, suing Fox News for defamation is, thanks to Sullivan, an "arduous legal undertaking." Lee Levine, described by Wemple as "retired media attorney," told him that it's "fair game" for Fox News to say that its executives' state of mind is irrelevant if they were not directly involved in the statements made by the channel's opinion hosts.

"Proving who knew what when isn’t as juicy as, say, the text message from Fox News host Tucker Carlson advocating the dismissal of a colleague over solid reporting," Wemple argues. "Or the claim about (Jeanine) Pirro's mental health. But it's the lifeblood of an actual malice claim and will shape what’s expected to be a five-week trial."

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