Some worry the outcome of this trial could impact other news organizations.
The defamation trial against Fox News, brought by Dominion Voting Systems, is set to begin in Delaware this week. Dominion is seeking $1.6 billion in damages due to bogus claims Fox News employees put forth about the 2020 election being stolen from Donald Trump. The trial, which is set to last six weeks, implicates a number of Fox News stars, plus its owner Rupert Murdoch.
It’s a lot to follow, but we’re here to break down the details with exclusive intel from Katie’s conversations with two experts who have been watching this closely. First up is an interview with John Ellis, a political writer who worked as an analyst for Fox News and is now the editor-in-chief of the News Items newsletter (which Katie reads every morning!) for an insider’s take:
Then Katie checked in with Gabriel Sherman, a media reporter who’s written extensively about the Murdoch family’s succession drama for Vanity Fair and offered fascinating insights into the inner sanctum of the network:
You can see those conversations in full in the videos above, and here’s a rundown of everything you need to know.
What is the Fox News defamation lawsuit?
In 2021, Dominion Voting Systems filed a defamation lawsuit against Fox News Networks, which includes Fox News, Fox Business, and Fox Corp., its parent company. Dominion claims it was defamed by Fox News when the network aired conspiracy theories that the company had ties to the late Venezuelan President Hugo Chávez and that it had rigged the 2020 U.S. presidential election by flipping millions of votes cast for Donald Trump to Joe Biden.
Fox, however, is invoking the First Amendment for its defense. Lawyers for the outlet claim that it was simply reporting on the president’s claims that the election was stolen, which is newsworthy. “In its coverage, Fox News fulfilled its commitment to inform fully and comment fairly,” attorneys for Fox News said in a brief. “Some hosts viewed the president’s claims skeptically; others viewed them hopefully; all recognized them as profoundly newsworthy.”
According to Sherman, who’s done significant in-depth reporting into how decisions are made at Fox, Rupert Murdoch’s decisions were guided by the fact that he “became a hostage” to his own audience, who so closely aligned with Donald Trump that they were unwilling to accept any narrative about him losing to Joe Biden legitimately in 2020. The result was “a Frankenstein story” in which Fox executives were controlled by viewers who were happy to change the channel to Newsmax or One America News Network to find the story they wanted to hear.
“In the weeks after the election, Rupert Murdoch and other executives basically went into panic mode and said, ‘If we don’t validate or indulge these conspiracies, our audience is going to tune out,'” Sherman said. “To me, what was so striking is that in private, Rupert Murdoch literally called the stuff ‘crazy,’ and yet he allowed these things to go on air unchallenged.”
Does Dominion have to prove the election wasn’t stolen?
No. In late March, Davis ruled that the stolen election statements made by Fox News were false, writing in his ruling, “The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true,” putting emphasis on the word “crystal.” He also said that Fox failed to conduct “good-faith, disinterested reporting.” During the trial, jurors will be instructed that the aforementioned rigging claims are not true.
What Dominion will have to prove, however, is that Fox News acted with actual malice — a legal standard that means that the network either published claims it knew were false or acted with reckless disregard for the truth.
Court filings, which included communications between a number of Fox employees, showed them mocking Trump’s attorneys and questioning their claims about the election being stolen. In a text message, Tucker Carlson told Laura Ingraham, “Sidney [Powell] is a complete nut. No one will work with her. Ditto with Rudy [Giuliani].” Sean Hannity said in a deposition, “That whole narrative that Sidney was pushing. I did not believe it for one second.” Still, it will be up to the jury to decide whether statements such as these meet the bar for actual malice.
Will Tucker Carlson testify at trial?
A number of familiar names are on the expected witness list, though we don’t know when they will take the stand. Judge Davis said he could compel Rupert and Lachlan Murdoch, as well as Paul Ryan, to testify. Also on the expected witness list are Carlson, Hannity, Ingraham, Bret Baier, and Maria Bartiromo. The trial will not be televised, and no cameras are allowed.
Is the Fox News trial bad for the First Amendment?
Currently, the bar for a public figure to prove defamation is high — and there’s a reason for that. The 1964 landmark Supreme Court case New York Times v. Sullivan established the actual malice rule, which protects good-faith public debate and, ultimately, free speech and an unrestricted press. On the flip side, it’s important for public trust in journalism to have accountability for organizations or reporters that knowingly lie.
The case against Fox News case is historic, both because of the outcome of the jury trial itself and the potential to examine the existing precedent should Fox lose and appeal to the Supreme Court. Some media lawyers worry that, somewhat paradoxically, if Fox wins the suit, it could give fuel to a growing movement to roll back First Amendment protections for journalists. That’s because a Fox victory could seemingly bolster the argument, which is currently mostly being pushed by conservatives, that the bar to prove defamation is too high.
Others, though, think that Fox losing would be problematic for journalists because it could lead to other defamation lawsuits against news outlets. Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press and a law professor at the University of Minnesota, told NPR that it could call all news organizations’ methods into question by paving a path for lawsuits from bad-faith actors prying into outlets’ editorial practices. George Freeman, the executive director of the Media Law Resource Center, told Insider that it could open up a can of worms for public figures to go on fishing expeditions when outlets publish unflattering information. “To some degree where it’s really necessary, yes, the plaintiff is entitled to learn something about the journalistic process that went into the story,” he said. “That shouldn’t mean that it’s open season on journalists and they should have to give over everything about how the story was put together if it has no bearing on the ‘actual malice’ question.”
Still, others think that the concerns this ruling would impact the First Amendment are overblown. First Amendment attorney James Goodale, who’s represented the New York Times, CBS, NBC, and other news outlets, told Insider that Fox News might be closer to entertainment than journalism, and the particularities of this case — and Fox’s favoritism toward Trump — may not have many implications for other news organizations. First Amendment litigator Douglas Mirell told The Wrap the case against Fox is “terribly unusual” and said that it likely meets the bar for actual malice. Other analysts tell CNN, “holding Fox accountable for knowingly airing lies won’t pose a threat to objective journalists who would never do that in the first place.”
Why Fox isn’t like other news outlets
Political writer and analyst John Ellis worked at Fox from 2014-2019. In a recent conversation, he told Katie, “The audience programs the network and not the other way around.” This means, “If the audience wants the narrative to be that the election was stolen, then Fox will adjust to meet [that] because it’s very afraid of losing its audience.” When Giuliani and Powell appeared on Fox programs and spouted conspiracy theories, ratings went up — so for the network, “That was a good thing, not a bad thing,” Ellis said. And as far as journalistic ethics go, Ellis said, “The decision-making process was, ‘X is bad for ratings. Y is good for ratings.’ There was no journalistic ethics or moral judgment.” (In this case, X was fact-checking former president Trump’s claims and Y was promoting the Big Lie.)
Ultimately, a loss against Dominion may just open up the doors for other cases against Fox — Smartmatic is another voting systems company that filed a lawsuit against the network.
What will happen to Fox News if it loses?
Although the $1.6 billion in damages seems like a lot, it wouldn’t put the news outlet out of business — according to Fox Corp.’s earnings release, the company reported $4.61 billion in total quarterly revenues in Q4 2022.
But if the network were to lose, it would have to decide what to do with the journalists named in the suit — who are some of Fox’s biggest attractions. “Any other news organization would have probably seen their hosts losing their jobs for improper reporting,” Imraan Farukhi, an assistant professor at Syracuse University’s S.I. Newhouse School of Public Communications, told NBC.
But Ellis doesn’t think Fox will be so quick to give hosts the axe: “I think the anchors who are vulnerable are the anchors who have the smallest audiences,” he said. “The big names, the prime-time names, Fox will be terrified of firing because they have strong constituencies. If they decide to get rid of Sean Hannity or Tucker Carlson, the audience will not like that.” He says “it seems unlikely” Hannity or Carlson will be fired.
So who could pay the price? Media reporter Gabriel Sherman thinks it could be someone in the C-suite: “There’s been a lot of speculation in the media that Suzanne Scott, the current CEO and president will, be the eventual fall person for this scandal,” he said.
Will Fox settle?
After the trial’s start date was pushed from Monday, April 17 to Tuesday, April 18, there was growing speculation that Fox was trying to settle. Ellis says he would “be very surprised if Fox didn’t settle,” not least to save the network the embarrassment of having pages and pages of internal communications made public. “The question is, will Dominion settle?” he says. “Seems to me like if they get a full-throated apology and a boatload of money, that’s probably in their best interest to do so.”
That same sentiment resonated with Sherman, who told Katie about the chatter he’s getting from inside sources. He says Fox is “desperate” to settle to avoid exactly the kind of public embarrassment Ellis mentioned, but it’s not happened yet for a couple of reasons.
“I’m hearing two things: One, they’ve been very far apart on numbers — Fox does not want to pay anywhere near the $1.6 billion that Dominion has asked for in the lawsuit,” Sherman said. “Secondly, from what I hear, Dominion wants to take this to trial. Yes, this is about money, but this is also about setting up a guardrail and saying that putting out misinformation has a financial cost to media companies. There’s a larger principle at stake here.”
As for how a loss or settlement could impact Fox’s audience, that much remains to be seen. Fox Corp.’s stock prices have remained steady since the lawsuit, as have ratings, according to Nielsen. Plus, reviews are mixed whether viewers actually care that Fox’s personalities perpetuated a conspiracy theory. Ellis thinks that while Fox losing would be “utterly humiliating,” viewers will remain loyal. “Because Fox is the only place on television to go for the kind of programming that it offers, I don’t think it will have much impact on their audience.”
