An ominous sign for Fox News: Media critic breaks down pre-trial hearings in Dominion defamation suit

13 April 2023

This Monday, April 17, the trial in Dominion Voting Systems' $1.6 billion defamation lawsuit against Fox News is scheduled to begin. Defamation, thanks to the U.S. Supreme Court's unanimous ruling in New York Times v. Sullivan back in 1964, is extremely difficult to prove. And attorneys for Dominion have to show that Fox News acted with "actual malice" when, in late 2020 and early 2021, it promoted the bogus, repeatedly debunked conspiracy theory that Dominion's voting equipment was used to help now-President Joe Biden steal the election from then-President Donald Trump.

The very nature of defamation lawsuits, thanks to the late Chief Justice Earl Warren and his colleagues, gives Dominion an uphill climb. But Washington Post media critic Erik Wemple, in an April 13 column, lays out some reasons why he believes that pre-trial hearings in the case are an ominous sign for Fox News.

During the process known as "discovery," opposing sides in a case are required to share evidence. Wemple notes that Eric M. Davis, the judge in the case, "sanctioned Fox for withholding evidence after Dominion claimed that it hadn't received germane materials from the company." And Judge Davis also reminded Fox News' attorneys "that under the relevant law, there's no protection for publishing damaging falsehoods alongside the truth."

"One of Dominion's motions aimed straight at the heart of Fox News' defense," Wemple explains. "In filing after filing, Fox News has insisted that actions such as inviting Trump-aligned lawyers Sidney Powell and Rudy Giuliani on air to voice their theories about a Dominion election conspiracy responded to the newsworthiness of allegations from Trump and his other allies. Media organizations, the network argues, 'cannot be held liable for accurately reporting newsworthy allegations made by newsworthy figures, even if those allegations ultimately turn out to be false.'"

Wemple continues, "Not so fast, Dominion retorted. 'That is not the law,' its lawyers argued in a pre-trial motion. Dominion asked the court to preclude Fox News from arguing 'newsworthiness' as a factor in determining its liability under the legal standard in defamation cases. On Tuesday, (April 11), Davis prohibited Fox News lawyers from making such arguments but said witnesses could mention newsworthiness as a consideration in their editorial decision-making."

Dominion, Wemple observes, has been trying to poke holes in Fox News' argument that it featured attorney Sidney Powell and other conspiracy theorists after the 2020 election because her claims were newsworthy.

"Newsworthiness" is essential to Fox's defense — or at least to its explanation of why it featured several guests who peddled lies about the presidential election," the Post media critic notes. "And if Fox News takes 'newsworthiness' seriously, where were all the 'fair-and-balanced' segments in which conspiracy theorists faced opposing voices equipped with debunking information?.... The legal and PR disasters are compounding for Fox News."

Wemple adds, "Surely, the network girded itself for some unfavorable headlines stemming from the lawsuit. But the discovery phase of proceedings produced a bonanza of revelations, documenting how Fox executives steered programming not according to the facts, but for their audience's thirst for comforting falsehoods. And now comes the finding that Fox wasn't forthcoming with all the evidence of its misdeeds."

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

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