A court decision last week green lights bold defamation action against the English-speaking world’s most powerful media empire, as Alan Austin reports.
HOPES HAVE BEEN raised in recent days that the rabidly pro-Donald Trump media outlets which deliberately lied to the American people – and the wider world – about the 2020 Presidential Election may suffer dire consequences.
For the last two years, two vote-counting technology companies have been seeking redress for defamation by Rupert Murdoch’s Fox News and a few copycat Right-wing media outlets.
Dominion Voting Systems has sued Fox and its parent company, Fox Corporation, for at least US$1.6 billion (AU$2.33 billion) for falsely claiming its machines changed votes cast for Trump into votes for Joe Biden. The trial is scheduled for April.
Smartmatic has also sued Fox, its parent and others for $2.7 billion (AU$3.94 billion).
Fox recently lodged an appeal to the New York's Supreme Court Appellate Division to have Smartmatic’s action dismissed on the grounds that reporting denials of election integrity was legitimate news coverage; protected by free speech; and there was no “actual malice” — which is a necessary element for defamation to succeed in the USA.
Last Tuesday, the five appellate judges unanimously rejected Fox’s claims. Smartmatic’s action – against Fox News, hosts Maria Bartiromo and Jeanine Pirro, former host Lou Dobbs and Donald Trump’s former attorney, Rudy Giuliani – will now proceed to the next phases before eventually being assessed by a judge and jury in open court.
Malicious intent by Fox News executives
Fox’s argument that their baseless lies are protected by constitutional free speech provisions fails if complainants can show “actual malice”, which means either they knew their election tampering claims were false or they knowingly ignored facts that would have shown them to be false.
Finding in Smartmatic’s favour last week, the judges said:
‘...the complaint alleges in detailed fashion that in their coverage and commentary, Fox News, Dobbs, and Bartiromo effectively endorsed and participated in the statements with reckless disregard for whether the assertions... had any basis in truth or were supported by any reliable evidence.’
This follows a similar ruling in the Dominion matter by Judge Eric Davis in the Superior Court of Delaware last June that Fox News executives decided to publicise Donald Trump’s claims that the 2020 Election was stolen from him, even though they knew this was completely untrue.
This followed Fox’s daytime and primetime audience plummeting by 34 per cent and 37 per cent respectively when they first reported – accurately – that Joe Biden had won the Election.
The judge found:
Rupert and Lachlan Murdoch caused Fox News to broadcast false claims about Dominion even though they did not personally believe former President Trump’s election fraud narrative.
Thus, Dominion has successfully brought home actual malice to the individuals at Fox Corporation who it claims to be responsible for the broadcasts.
Revelations from Dominion’s January motion
Also just released publicly is Dominion’s brief in support of its motion for summary judgment on the liability of Fox News, filed in the Delaware Superior Court last month. This offers an intriguing insight into the hypocrisy, lies and conspiracy theories that Fox News has been spreading.
The brief claims:
Normally the plaintiff does not inform the defendant about the falsity of the allegations during the course of the defamation itself. Here, however, Dominion repeatedly told Fox and urged it to stop publishing these “debunked” and “completely false” claims.
Dominion... made over 3,600 separate communications to Fox with at least a dozen separate and widely-circulated fact check emails — each pointing to verifiable third-party information debunking the claims.
Fox’s hosts, producers and executives had the facts in their inboxes. Indeed, [senior Fox executive] David Clark joked he had them “tattooed on [his] body”.
Internal Fox News deliberations
The Dominion brief shows that on 12 November 2020, prime time Fox presenter Tucker Carlson found that a colleague, reporter Jacqui Heinrich, had fact-checked a tweet by Trump claiming election fraud and sent a tweet showing Trump was lying.
Carlson complained about Heinrich to fellow Fox anchor Sean Hannity:
Please get her fired. Seriously... What the f*ck?
It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.
Carlson is also quoted as asserting:
“What [Trump]’s good at is destroying things. He’s the undisputed world champion of that. He could easily destroy us if we play it wrong.”
Financial motive to lie
Other gems from the Dominion brief include:
Tucker Carlson:
“We can’t make people think we’ve turned against Trump. Yet also call out the bullshit. You and I see through it. But we have to reassure some in the audience.”
Carlson knew My Pillow entrepreneur Mike Lindell was making his Dominion machine fraud claims “every single day of the year” and that “it is universally known by people who know anything about Mike Lindell” that he holds these bogus beliefs.
On 20 November, Carlson nevertheless invited Lindell on air to make the same false claims. Lindell’s company, My Pillow, is Fox’s top advertising spender.
Possible upshots of these cases
Dominion’s demand for $1.6 billion, plus Smartmatic’s $2.7 billion claim, comes to an eye-watering $4.3 billion (AU$6.27 billion). The juries may, of course, award more.
News Corp is currently valued at $10.96 billion (AU$15.95 billion). According to Forbes, Rupert Murdoch and his family had a net worth of $18.3 billion last Friday.
This suggests that even if Fox News loses all current defamation cases, the media company will not be forced out of business entirely. That is disappointing.
So let’s hope the outcomes of these cases encourage more citizens in the USA and other nations where News Corp operates, including Australia, to recognise the reality and join consumer boycotts.
It is not a legitimate media organisation. Its principal business objective is to deceive its audience. The sooner it disappears completely, the safer, happier, more harmonious and better-informed the world will be.
Alan Austin is an Independent Australia columnist and freelance journalist. You can follow him on Twitter @alanaustin001.
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