Dominion is Hitting Fox Where it Hurts

There’s a lot to like about the bombshell revelations coming out about Fox News. So much, to be sure, that it’s easy to lose sight of the actual lawsuit that has set those bombshells off.

But Dominion Voting Systems, with its $1.6 billion defamation suit against Fox, is in the process of blowing a gaping hole in Fox’s entire business model.

Seeing the discovery materials that have come out in court filings, we can now get a good look, not just at the depravity of Fox’s hosts, but also at the strength of Dominion’s case.

This is surely the most serious challenge Fox has ever faced. Dominion, a company with deep pockets and an extraordinary set of grievances, is going for the throat. They’re calling Fox out in court, for the wanton spread of disinformation and propaganda, and they’re spelling out, in their filings, what that means for democracy.

Let’s not be distracted by the salacious revelations themselves. Seeing Fox hosts exposed as snakes, liars, hypocrites, and haters of their own audience is great schadenfreude, but it’s hardly a surprise.

The real news, which has been somewhat obscured, is that there will be a motion for summary judgment in the case. It’s set for March 21.

This is a big deal in any legal matter, but especially in a libel suit. Both Dominion and Fox are separately asking the judge to decide the case without going to trial. Fox wants the matter thrown out entirely. Dominion wants the judge to agree that Fox has no viable defense.

Each side will present its own arguments. But I’m here to tell you that Fox’s arguments are both thin and transparently disingenuous, while Dominion’s are absolutely devastating.

Amazingly, Fox isn’t disputing the facts. They’ve effectively conceded that everything they said on the air about Dominion in the wake of the 2020 election was false. So with all that evidence not being contested, Dominion is asking the judge, in effect, why waste the court’s valuable time on a jury trial? Why not just go right to the damages part? It could happen.

Fox, for its part, will try to convince the judge that false claims — especially false claims by a U.S. president about, say, a stolen election — are “newsworthy allegations,” and that Fox was simply reporting those claims as news.

Beyond being legally questionable, this argument is not at all in keeping with the facts. Fox was not just reporting, it was advocating, and it was using deliberate disinformation to do it. Everyone who worked there knew this, right up to Rupert Murdoch. A lot of them put it in writing. Some of them put it in depositions.

First Amendment experts are unusually excited about this. The long evolution of First Amendment law has mostly been about protecting journalists. Given that freedom of the press is meant to be a cornerstone of democracy, journalists have, over time, been given both great license to report news, and great latitude when they make a mistake.

This has resulted in an intimidatingly high bar for proving libel under the law. It’s not enough to prove that a statement made about a public figure is false. You must prove that the news organization knew it was false, and that they published it anyway, in “reckless disregard of the truth.” Or, in other words, they acted with malice.

Remarkably, the Dominion case puts the whole First Amendment discussion on another plane. It’s no longer just about protecting journalists from aggrieved public figures. Now it’s also about protecting a democratic society from propagandists posing as journalists.

This is not an idle discussion. Many on the right, including Clarence Thomas and Neil Gorsuch, both big fans of disinformation, have been grumbling for years that it’s too hard for public figures — like, say, Donald Trump — to win libel cases against media companies that challenge their lies.

But now Dominion is showing that the threshold for libel, while high, is not insurmountable. And that it’s Fox — not the Times, not the Post, not CNN — that has crossed it. It’s Fox whose blatant lies now make them vulnerable under the law.

Thomas and Gorsuch can’t help but notice that any lowering of that threshold will inevitably make it even easier to sue Fox than to sue any so-called “liberal” outlet. Which means if Fox loses here, it won’t be able to count on a rigged SCOTUS to bail it out. The SCOTUS right wing would be shooting itself in the foot.

The Fox business model — propaganda that defames with impunity, in service of an authoritarian agenda — may finally be reaching its limits.

The Dominion case is not the kind that will settle out of court. Dominion needs its reputation back. It needs a public acknowledgement — if not from Fox itself, then from the verdict — that Fox lied with malice aforethought, thereby wreaking catastrophic damage on the Dominion brand. This is, in a way, more important than any money awarded them. It would take an eye-popping public apology from Fox to get Dominion to settle. Which won’t happen.

Fox won’t settle either, because that would be admitting there is substance to the charges, which would leave it open to more lawsuits of the same kind. Which is already happening.

So Fox is cornered. It can’t settle. It can’t make any reasonable case. It has to rely on arguments that are not just specious, but also run counter to the tenets of a free press in a democracy. Rock, meet hard place.

None of this means the court will render a summary judgment for Dominion and get this whole thing over with. The case could drag out for years, over which time it will be interesting to see how Fox behaves under this litigious cloud.

If Dominion wins, whether sooner or later, Fox could face a cascade of legal, financial, and governance problems that would surely outlive Rupert Murdoch. If malice can be demonstrated in court, Fox as it exists now may never be the same.

For starters, the Smartmatic lawsuit will go to trial in 2024 (yes, the process is slow). Their case will be at least as strong as Dominion’s, and they’ll be fine-tuning their legal strategy based on Dominion’s outcome. They’re asking for nearly a billion more in damages than Dominion.

In the meantime, there will likely be a shareholder uprising at Fox, as the damage to its brand shows up in its stock price. There are, from one report, at least eight major law firms currently rounding up Fox stockholders for an assault on corporate management. These law firms will be looking to sue the Fox board for all sorts of things — malfeasance, fraud, abuse of fiduciary powers — which will hit Fox where it hurts most, in Murdoch’s wallet.

Without Fox, there would be no Trump. Without Fox, there would be no legion of reprogrammable fools being led into one corrosive conspiracy theory after another. 

The damage Fox has done to the country is incalculable, but it has always looked like there was no way to stop it. Maybe, just maybe, there is now.