Former Fox Business host Lou Dobbs interviews Sidney Powell.
Leaning heavily on the First Amendment and raising election controversies predating the 2020 presidential contest, Fox News Network, LLC on Tuesday filed papers to dismiss a $1.6 billion defamation lawsuit by Dominion Voting Systems over the fallout of the election which removed Donald Trump from the White House. The motion to dismiss says Fox’s “responsible journalists . . . covered both sides” of the 2020 election controversy and that the network’s opinion hosts provided commentary which “a reasonable viewer” would consider as little more than “hyperbole speculating” about what really happened with the election — “rather than [as] factual assertions.”
The original lawsuit, filed in Superior Court in State of Delaware, makes but one claim, defamation per se, but does so through 139 pages of legal argument and hundreds of pages of following exhibits. Defendant Fox News Network, LLC is a corporate entity which covers multiple Fox News media platforms.
Fox’s response, which also strongly points to the Trump White House as the true genesis of controversy surrounding the election, is legally postured as a Rule 12(b)(6) motion to dismiss the case based upon Dominion’s pleadings because, in the network’s view, Dominion failed to state a viable claim upon which relief may be granted. Such tactical moves are commonplace in litigation; Delaware’s Rule 12(b)(6) structurally mirrors a rule by the same number contained within the Federal Rules of Civil Procedure.
“A free press must be able to report both sides of a story involving claims striking at the core of our democracy—especially when those claims prompt numerous lawsuits, government investigations, and election recounts,” says a preliminary statement filed by the Fox News Network as part of its motion to dismiss. “When a sitting President of the United States and his legal team challenge a presidential election in litigation throughout the nation, the media can truthfully report and comment on those allegations under the First Amendment without fear of liability. Plaintiffs’ defamation lawsuit against Fox News threatens to stifle the media’s free-speech right to inform the public about newsworthy allegations of paramount public concern.”
The opening salvo continues by reminding the court that “Fox hosts did not create allegations against Dominion, which predate the November 2020 election.” To wit (and with citations to exhibits and case law omitted):
In 2019 legal claims still pending [as of the date of the filing], Georgia voters alleged that Dominion’s “unaccountable, unverifiable” voting system “will be a colossal train wreck for democracy,” because it “produces unaccountable, inherently evidence-free election outcomes by its very design.” In October 2020, federal Judge Totenberg credited testimony in that case from an “array of experts and subject matter specialists [that] provided a huge volume of significant evidence regarding the security risks and deficits in the [Dominion] system.” The court warned that Dominion’s technology “presents serious system security vulnerability and operational issues” caused by “fundamental deficits and exposure” — risks the court found “neither hypothetical nor remote.” During a subsequent PBS interview, one of the challengers’ experts “worried” that Dominion’s system “is the technical equivalent” to an airplane crash.
The network’s motion to dismiss then said Fox, staffed by “responsible journalists . . . covered both sides”:
A week later, Fox called Arizona before any other network, and Fox then called the election for now-President Biden the same day as other media. That call was disputed: President Trump and his legal team quickly challenged the election results in lawsuits across the country. Instead of shying away from reporting these controversies, Fox fairly and extensively covered them just as it had reported the election results. As responsible journalists, Fox covered both sides. The American people deserved to know why President Trump refused to concede despite his apparent loss.
“Fox hosts responsibly covered the controversy, repeatedly pressing the President’s attorneys, Rudy Giuliani and Sidney Powell, for evidence substantiating their allegations,” the motion continues. “Dominion accepted Fox’s offer to appear on air, vigorously disputing the claims. Hosts reminded viewers of Dominion’s denials. And some shared opinions about the allegations.”
Legally, the networks are asking the court to dismiss the Dominion claims for two reasons. First, the networks say the First Amendment and “New York free-speech doctrines” are on their side:
It was a newsworthy “fact” that the sitting President simply made allegations challenging the presidential election. Dominion confuses the obligation to truthfully report allegations with a purported requirement that the media rebut their underlying falsity. No such duty exists under the First Amendment or New York law. The press can safely cover both sides and interview newsmakers without endorsing everything they say. The freedoms of speech and press would be illusory if the prevailing party could obtain billions of dollars from the press for providing the losing side a forum.
Second, the network argues that Dominion failed to plead their claims with “actual malice” — the legal standard which measures not whether a defendant hates a plaintiff, but whether the defendant broadcast information “with knowledge or reckless disregard of its falsity and that the person responsible for telecasting the speech in fact entertained serious doubts about its truth.”
“At most, Dominion alleges that Fox negligently failed to investigate the President’s lawyers’ speech in advance and refused to stop reporting after Dominion denied their allegations,” Fox argued. “The U.S. Supreme Court has already rejected these theories of actual malice.”
“There are two sides to every story,” the network continued. “The press must remain free to cover both sides, or there will be a free press no more. Dominion’s $1.6 billion suit against Fox for covering both sides of this vigorous election dispute should be dismissed.”
After several pages of arguments about previous litigation surrounding Dominion, Fox circled back to the “responsible journalists” defense (again, citations to the record are omitted):
Fox hosts — including Maria Bartiromo, Lou Dobbs, and Jeanine Pirro — went straight to the newsmakers connected to those lawsuits. They interviewed the President’s lawyers, Rudy Giuliani and Sidney Powell, about their vote-fraud allegations concerning Dominion. During the interviews, Giuliani and Powell made several allegations against Dominion matching claims asserted in court: “(1) Dominion committed election fraud by rigging the 2020 Presidential Election; (2) Dominion’s software and algorithms manipulated vote counts in the 2020 Presidential Election; (3) Dominion is owned by a company founded in Venezuela to rig elections for the dictator Hugo Chávez; and (4) Dominion paid kickbacks to government officials who used its machines in the 2020 Presidential Election.”
Fox also covered the other side of this story . . . Fox’s coverage of the election-fraud allegations was often quite skeptical. Fox hosts regularly and accurately introduced Giuliani and Powell as members of the President’s legal team, pressed them for supporting evidence, informed viewers of Dominion’s denials, and called for deeper investigation by authorities. Dominion concedes that Fox hosts like Laura Ingraham and Tucker Carlson expressed skepticism about the allegations against Dominion, highlighting the lack of supporting evidence. Dominion itself appeared on Fox to offer its side: Fox anchor Eric Shawn interviewed on air Dominion spokesperson Michael Steel, who addressed and denied President Trump’s allegations.
Here’s how Fox discussed a segment where Jeanine Pirro talked with Sidney Powell (citations omitted):
Pirro ended by calling for further investigation—“hopefully” by “the Department of Justice”—and she wished Powell “good luck on your—on your mission.” Pirro’s call for further investigation is protected opinion, as are her well wishes to Powell. Especially for a pundit opinion commentator like Pirro, a “reasonable” viewer would expect that statement “represent[s] the viewpoints of their authors and, as such, contain[s] considerable hyperbole, speculation, diversified forms of expression and opinion.”
[ . . . ]
Separately, Pirro questioned, “Why was there an overnight popping of the vote tabulation that cannot be explained for Biden?” This expressed Pirro’s opinion about whether an explanation existed. It does not even mention Dominion. At most, a reasonable viewer would interpret this pundit commentator’s question as hyperbole speculating about an explanation.
And, as to a segment between former Fox Business host Lou Dobbs and Rudy Giuliani:
Reacting to Giuliani’s claim that “[t]his was a stolen election,” Dobbs later opined that “this looks to me like it may be—and I say may be—I’m not suggesting it is.” Dobbs added hyperbolic rhetoric, further asserting his opinion connected to the earlier “special counsel investigation” and “impeachment process”: “This looks to me like . . . the endgame to a four-and-a-half year long effort to overthrow the President of the United States.” Dobbs ended the segment with more opinion noting the election’s many “firsts” and calling for investigation urging Giuliani to keep “pursuing what is the truth.” Reasonable viewers would understand these statements as Dobbs’ opinion reacting to Giuliani’s allegations rather than factual assertions.
Fox then issued this defense of a Lou Dobbs tweet (citations to the record and to case law are omitted):
On November 14, Dobbs tweeted: “Read all about Dominion and Smartmatic voting companies and you’ll soon understand how pervasive this Democrat electoral fraud is, and why there’s no way in the world the 2020 Presidential election was free or fair.” This tweet features “loose, figurative, or hyperbolic language” that “negate[s] the impression” Dobbs is stating defamatory facts. Dobbs used “colloquial and loose” language when saying “there is no way in the world” the election “was free or fair.” Moreover, the tweet is “devoid of reference to” any “specific” facts about Dominion, and it instead attributes “electoral fraud” to “Democrat[s]” generally. In short, the tweet conveys an “expression of outrage,” not “an accusation of fact.” This is not “the language of someone inviting reasonable persons” to “find specific factual allegations in his remarks,” and this same reasoning has been rejected in other defamation suits involving allegations of “fraud.”
The speech’s forum — Twitter — reinforces that Dobbs was not stating defamatory facts. Courts have recognized that Twitter is not a forum where reasonable viewers would conclude they are seeing actual facts about the plaintiff. Instead, the “common expectation” with Twitter is that such statements “will represent the viewpoints of their authors and, as such, contain considerable hyperbole, speculation, diversified forms of expression and opinion.”
Though Dominion filed its lawsuit in Delaware, the Fox motion to dismiss says both sides agreed that New York law applies, in part because that is where all of the broadcasts originated. Fox says that fact also gives it a legal edge: “Dominion cannot satisfy the New York anti-SLAPP law’s ‘heightened standard” for pleading claims addressing statements regarding matters of public concern.”
The document is signed by Blake Rohrbacher of the Wilmington, Del. law firm Richards, Layton & Finger. Of counsel are First Amendment litigators Charles L. Babcock and Scott A. Keller. Scott Keller is in no way related to the author of this article.
In response to Fox’s motion to dismiss, Dominion released the following statement to Law&Crime: “Dominion strongly supports free speech, but defamation for commercial gain is clearly not protected, and we intend to hold FOX accountable for its reckless disregard for the truth. This case will strengthen the First Amendment, not weaken it.”
[image via Fox Business screengrab/Dominion lawsuit]
[Editor’s note: this report was updated shortly after publication to include additional material from the lawsuit. It has also been updated to include Dominion’s statement in response to the motion.]
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