Fox News’ defense in the defamation lawsuit cites debunked voter fraud allegations

Fox News’ lawyers have offered the strongest defense yet against allegations that the network defamed an election technology company when it aired false claims that the company cheated then-President Donald Trump out of the 2020 election.

The overwhelming majority of Fox’s arguments were made in sealed motions last week asking the presiding judge to dismiss Dominion Voting Systems’ $1.6 billion lawsuit before it goes to trial in April. But in supplementary public filings, the contours of the Fox team’s arguments become clearer.

Of the approximately 115 statements made by hosts and guests about Fox that Dominion calls defamatory, Fox News wrote in its filing: “There is not a single statement for which Dominion can prove every element of its allegation of libel.”

Fox and Dominion did not comment on this story.

A statement of Fox stars’ willingness to spread debunked claims

In these documents, Fox attorneys provide “exuberant context” for the seemingly inflammatory statements made by hosts including Sean Hannity, Jeanine Pirro, Lou Dobbs and Maria Bartiromo, and their celebrity guests, including Trump and his former campaign attorneys Rudy Giuliani and Sidney Powell. This context includes claims long since debunked and refuted in dozens of court cases and by local and state election officials from both parties.

Among them: claims that the use of Sharpie markers in Maricopa County, Arizona, invalidated votes cast by Trump supporters because the ink often bled through the ballots. Allegations of voter fraud in Detroit. The affidavit of an anonymous witness who said he was a former member of the Venezuelan Presidential Security Team and accused Dominion of committing electoral fraud in the United States

All of these claims have been refuted. Many were uncovered in real time during the 2020 election season — often by Fox’s own reporters.

The Fox News legal team does not defend them as correct. Instead, his filing suggests that the Fox stars who aired it reflected an appropriate journalistic response to blatant claims about the workings of American democracy, since they include “questions to a newsmaker about newsworthy issues” or “precisely about pending ones.” report allegations”. ”

“Didn’t withstand the daylight”

Eddie Perez, board member of the OSET Institute, a nonprofit, nonpartisan body dedicated to reliable and transparent voting technology, calls the claims about Dominion, which have been reinforced by Fox hosts and peddled by its guests, “flaky.”

“If anything, they immediately drew a lot of attention and were exposed for being so outlandish,” says Perez. “They didn’t withstand the light of day right away.”

To counter Dominion, Fox’s attorneys provide a table of offensive statements and so-called “omitted context” that might explain why the material was newsworthy, why the Fox moderators’ treatment was responsible, and why it was not defamatory.

The network’s attorneys write, as they have previously done, that Fox was merely relaying inherently newsworthy claims made by Trump and his proxies. The lawyers argue that the allegedly defamatory statements are often exaggerated characterizations or mere opinions. (Fox attorneys previously fought off an independent defamation lawsuit against star Tucker Carlson, filed by a woman who had an affair with Trump, by arguing no one believes what the Fox star says is literally true is.)

Additionally, Fox’s attorneys say many of the disputed claims were true or mostly true. And the network says Dominion can’t prove “actual malice” — a strict legal standard that requires it to prove Fox journalists and executives either acted with knowledge that what it was broadcasting was not true, or with reckless disregard.

Fox “doubled down” on Dominion’s cheating plots

Fox’s bold claim that Dominion will fail to prove incidents of libel does not find universal support in legal circles. Attorneys not involved in the case pointed to statements by Fox that they say have lent far too much credence to the Trump camp for far too long to claim mere journalistic sensitivity.

“Fox journalists and executives have been told repeatedly for weeks that the stories about the voting machine are false,” Lucy Dalglish, dean of the University of Maryland’s Merrill College of Journalism, wrote in an email for the story.

“Quoting the President of the United States and relying on the privilege of a ‘fair report’ only gets you so far,” said Dalglish, a noted First Amendment advocate and media advocate. “You didn’t just quote Trump. They doubled down and reported repeatedly, claiming that Dominion’s systems were flawed.”

Dominion’s legal team relies on a rich body of material from interviewing Fox journalists and executives under oath and searching their emails, texts and other communications. Only a whiff of it has reached the public. It suggests that key people at Fox knew behind the scenes that the allegations against Dominion were unfounded.

In an affidavit cited by a Dominion attorney in court, Hannity said he didn’t believe the fraud allegations “for a second.” Fox News Media CEO Suzanne Scott privately told her colleagues “not to give the lunatics an inch”. A producer sent an email asking her colleagues not to let Pirro go on the air to spread baseless conspiracy theories gleaned from dark corners of the internet.

Dominion’s lawyers have removed people from across the Fox hierarchy, from up-and-coming producers to stars and executives, most recently controlling owner Rupert Murdoch, who was questioned under oath on Fox Studios grounds last Thursday and Friday. His case stems from the theory that there were efforts — from the top to the bottom of the Fox hierarchy — to placate viewers who were upset that Fox was the first TV station to target the key state of Arizona for Joe Biden in November 2020 called. (The Murdochs and Fox refused to reverse the projection despite intense pressure from Trump and his campaign.) That explains the continued acceptance of unsubstantiated claims, argue Dominion’s legal team.

In the new filings, Fox’s lawyers are trying to provide their own context for what transpired on the network’s shows.

Thomas Wienner, a retired Michigan-based corporate litigator who is prosecuting the case at NPR’s request, says he appreciates the Fox team’s logic in trying to undermine every element of Dominion’s claims. And he says Fox may well be able to persuade the court to shut down some of the alleged cases of defamatory statements to be presented to the jury.

But after reviewing recent legal paperwork, Wienner says he believes Fox is in legal trouble.

“They put themselves in a real quandary when they start providing the surrounding context,” says Wienner. “Sometimes that context is helpful to them. But sometimes… it makes it worse. It doesn’t make it any better.”

“The overall impression you get from reading the omitted text is that night after night, day after day, these people have been promoting theories that were ridiculous and have been rejected by the courts,” says Wienner. “And there really wasn’t any support for them other than a few weirdos.”

A history of sharpie markers in Arizona shared despite thorough debunking

Among the discredited claims that contributed to the climate in which the Fox anchors spoke was a claim repeated by Trump, his campaign and his lawyers: that the use of Sharpie markers in Arizona altered the voices of the Trump voters have often been invalidated because of the ink bleeding through the ballots.

Those claims were debunked by Maricopa County officials even before Election Day: “Even if there is bleeding, it won’t affect the count because our improved ballots have off-center columns and our new tabs only read the ovals.” the district electoral office for example, tweeted on October 26, 2020. It was said that any confusion would be resolved by hand counting.

Republican National Committee Chair Ronna McDaniel claimed to Fox that Republican observers were thrown from polling stations in Michigan, ominously suggesting that fraud took place as indirect evidence. No such fraud was detected. (A few days after the election, Fox noted, moderators Bret Baier and Marsha MacCallum McDaniel repeatedly pressed for proof of their insinuations.)

In mid-December 2020, Perez appeared on Fox as a pundit on an awkward segment in which he was interviewed by an off-camera producer to debunk claims made on the network about a second voting technology company called Smartmatic. It ran on the shows hosted by Dobbs, Bartiromo, and Pirro. Dobbs left Fox Business in February 2021, a day after Smartmatic sued Fox in a separate $2.7 billion defamation lawsuit. It’s not quite as far as the Dominion case.

Fox’s supplemental filings last week also reproduce the affidavit of an anonymous man alleged to be a security guard for a Venezuelan president. He claimed Smartmatic had ties to the late Venezuelan autocratic leader Hugo Chavez and warned that both voting technology companies were attempting to defraud the US electorate. His affidavit was part of a lawsuit filed by attorney and pro-Trump conspiracy theorist Lin Wood, who was the subject of an effort by the Georgia State Bar Association to have his mental fitness assessed when it was considering a complaint aimed at having him lose his license withdraw justice. No evidence has emerged to support the unnamed man’s claims against Dominion and Smartmatic.

“My guess is that Fox’s attorneys would cringe every time they saw one of those stories,” says Dalglish, the attorney and dean of the First Amendment. “I certainly have.”

Karl Baker contributed to this story.

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