Fox News lawyer defends hosts’ post-election focus on Dominion, but defamation judge refers to ‘Dobbs problem’ update

UPDATED with afternoon session: While hosts such as Maria Bartiromo, Jeanine Pirro and Lou Dobbs reinforced allegations that Dominion Voting Systems was involved in voter fraud during the 2020 election, reasonable viewers could see that they were allegations and not proven facts, Fox’s attorney argued in court Tuesday argued in Delaware.

Erin Murphy told a judge that Fox News anchors, who featured figures like Sidney Powell and Rudy Giuliani in the weeks after the election, were looking for representatives of Donald Trump to explain the then-president’s claims.

“A reasonable viewer will understand that an interview is not a statement that what the guests say is true,” she said.

She said: “What matters is whether the press reports the allegations correctly, not whether the underlying allegations are true or false.”

Dominion and Fox are each asking Judge Eric Davis to rule in favor of their summary judgment motions, a move that could avoid an indictment in the voice system company’s $1.6 billion defamation lawsuit. Both sides presented arguments on Tuesday and will continue until Wednesday.

Davis asked Murphy several questions as she went through the post-election coverage show by show. Dominion singled out 20 separate counts of defamation of Fox News programs in its $1.6 billion lawsuit, including several counts of Dobbs, who was arguably the leading figure on the network when he broadcast the voter fraud.

“There seems to be a Dobbs problem,” Davis said.

Dobbs tweeted on Nov. 14, a week after Joe Biden was declared the winner, that if you “read all about the Dominion and Smartmatic polls, you will soon understand how pervasive this Democratic voter fraud is and why it is in the world is. “impossible to win the presidential election.” of 2020 was free or fair.

Davis questioned Murphy’s claim that the tweet did not clearly link Dominion to voter fraud, and she cited past concerns that the company’s systems could be hacked.

Dobbs also tweeted on December 10, “The 2020 election is a cyber pearl harbor: the leftist establishment has conspired to overthrow the US government. #MAGA #AmericaFirst #Dobbs.” The tweet was linked to a document that made a series of false claims about Dominion and Smartmatic, the latter of which is another voice company Fox is also suing.

Murphy argued that “a reasonable viewer would understand that it came from a document [from someone] except Lou Dobbs.”

Davis suggested that there was a conflict in Fox’s embrace of “neutral reporting privilege,” that it merely reported newsworthy events, but that the hosts also had a biased view. The judge wondered how Dobbs could cover up the allegations by pointing out the pro-MAGA and pro-AmericaFirst hashtags in his tweet. A similar tweet from the same day, promoting his interview with Powell, in which Dobbs writes that she “reveals groundbreaking new evidence suggesting our presidential election was the victim of a massive cyber attack involving Dominion, Smartmatic and orchestrated by foreign adversaries .”

“You mean he’s a neutral reporter?” the judge asked Murphy.

Murphy said the hashtags expressed Dobbs’ views, but that’s not the same as writing a hashtag like #electionfraud, which he didn’t do.

As Fox News faced lawsuits over its post-election coverage, Dobbs’ nightly Fox business show was canceled in February 2021.

Murphy pointed to instances where the hosts were clear that they discussed allegations. Aired November 21 Justice with Judge Jeanine, host Jeanine Pirro said that “the president’s lawyers allege a company called Dominion, which they believe was founded in Venezuela with Cuban money and using Smartmatic software, a backdoor that can flip votes.” The allegation was unfounded, but Murphy said that Pirro was merely pointing out allegations, then expressed her opinion that these were “serious” allegations, but that “the media has no interest in them”.

Dominion claims they emailed Fox News executives at the time to deny the claims, while executives overseeing Pirro’s show believed them to be false.

Later in the afternoon, Murphy argued that Dominion must prove that those who actually participated in the decision to spread the voter fraud allegations acted with malice. To prove that the network knew the allegations were false and went ahead anyway, Dominion cited a plethora of text messages and emails from top Fox executives, including Fox Corp. Rupert Murdoch, CEO.

“They should have actually been involved in the decision,” she said, adding that it couldn’t just be someone in the “chain of command”.

EARLY, Tuesday AM: Lawyers for Dominion Voting Systems and Fox faced off in a Delaware courtroom Tuesday in the next chapter of the landmark defamation case, as both sides sought a ruling that would win and perhaps avoid a lawsuit.

“Fox essentially made Sidney Powell a household name,” said Rodney Smolla, a First Amendment expert and Dominion’s attorney, referring to the attorney who was one of the prime contractors for the manufactured fraud allegations. Smolla also said Fox played a role in bringing in two others who made similar allegations, Rudy Giuliani and Mike Lindell.

Dominion’s lawyers spent the morning explaining how Fox was responsible for spreading false allegations about the company, despite the network claiming it was only dealing with a newsworthy issue that was ultimately in the public interest : a president’s claim that the elections were rigged.

Fox News executives and anchors were aware the allegations were false but did not stop guests from spreading them and hosts from supporting them, Dominion’s lawyers argued. They pointed to a text exchange in which host Maria Bartiromo wrote, “OK, Sidney will say it tomorrow,” in response to some allegations of voter fraud, referring to Powell. But producers and those overseeing Bartiromo’s show didn’t believe the claims of vote theft, one of Dominion’s lawyers argued, citing a message from Fox Business CEO Gary Schreier that Bartiromo was “slamming conspiracy theorists she has.”

Smolla said it was a “deliberate decision by those in charge of the programs to get the story out … to release the Kraken.” The latter was a reference to one of Powell’s statements at a now infamous press conference with Giuliani.

Fueled by a desire to win back Trump-supporting viewers, Fox News helped “start a new story that the election was stolen and that Dominion was the thief responsible for the theft.”

Smolla said the court’s precedent does not support Fox News’ argument that it is protected by neutral reporting privilege, or the concept that it is protected from defamation claims because it does only what Donald Trump’s lawyers have alleged about Dominion.

Smolla cited common law: “If you make a defamatory statement about someone else, take it as your own. You own it.” Fox News characters like Lou Dobbs didn’t neutrally report on allegations from their guests, but they “embraced what was said, they endorsed what was said”.

He also said the “real damage” to Dominion’s reputation is that Fox gave Powell and others a platform to make the false claims. “It was Fox’s representative who gave it the appeal and the seriousness,” he said.

The landmark 1964 Supreme Court ruling in New York Times v. Sullivan, the foundation of current libel law, “actually found that there are several interests that have to be balanced against each other.” The court also recognized that the defamation law not only protects news outlets, but also “protects the public from falsehoods.”

Dominion must prove that Fox News and its parent company, Fox Corp. acted with actual malice – knowing the allegations were false but somehow spreading them – or reckless disregard for the truth.

Another attorney, Justin Nelson, argued that there was enough evidence that Fox News executives and hosts knew what their guests were going to say, but discussed it anyway and failed to check it.

In fact, Nelson claimed that with the election allegations, Fox executives “made a decision to let the hosts go” and “stopped” talking about fact-checking.

Nelson said Fox received 3,682 individual messages from Dominion indicating the falsity of the allegations. The emails were so ubiquitous, he noted, that one executive, Senior Vice President David Clark, even joked that they were “tattooed on my body.” He also referred to the network’s own internal fact-checkers, called the “Brain Room,” which found the allegations unfounded. He cited a Nov. 5 email from Fox Business President Lauren Petterson about the ease with which allegations of voter fraud can be verified and denied. She wrote: “Anyone doing simple google searches or reading emails?”

Clark, Nelson said, “knew the conspiracy theories were wrong and the election was right,” and made the decision to cancel Jeanine Pirro’s Nov. 7 show because he “didn’t trust her responsibly.” But he saw a preview of Maria Bartiromo’s show with Powell as a guest the next day, but didn’t make it.

Nelson went through a series of internal memos — many of which were released in recent weeks — that show Fox figures sounding the alarm over wild claims by Trump allies. Tucker Carlson, he noted, wrote on Nov. 17 that what Powell said was “cruel and ruthless,” and later wrote that host Lou Dobbs was “ruthless.” Carlson also used “very graphic language” about what he really thought of Powell, writing in one instance that she “lied.”

“It’s rare that a defendant admits” that they knew what was broadcast was wrong, Nelson said. “Here we have it for multiple people for multiple shows.”

Nelson said there is also enough evidence that Fox Corp. was responsible and referred to texts and emails in which Rupert Murdoch and Lachlan Murdoch provided information about coverage to Fox News executives. Rupert Murdoch wrote in a Nov. 16 email that Giuliani “should be taken with a large grain of salt,” but he continued to land guest spots.

The Dominion attorney said there is no truly malicious defense for “putting guys like this on the air, knowing what they’re going to say and not calling them fake.”