Fox is facing a massive legal battle, and survival may be more about damage control than winning in court.
Since 2021, Fox News has faced defamation and lawsuits over allegations that the network intentionally spread lies that the 2020 presidential election was rigged.
The conservative news network’s highest-profile legal battle is with Dominion Voting Systems, an electronic voting machine and software supplier. The company is suing Fox in 2021 for $1.6 billion over false claims by Fox hosts during the 2020 election that Dominion helped Joe Biden win a fraudulent election against Donald Trump.
The case is currently in the early stages, when the court examines the evidence to decide whether it can rule the parties out of court. Arguments are now scheduled to begin on April 17.
But after weeks of damning public evidence against Fox, including texts and emails implicating on-air personalities as well as top executives, legal experts say there is rarely a clear path to victory for plaintiffs in high-profile defamation cases. case. Even if it doesn’t go to trial, the case could have long-lasting consequences for Fox News’ remaining credibility, and a lot of work for Fox itself.
“This case provides more evidence of knowing falsehood than most experts in the field are used to seeing in major media cases,” RonNell Andersen Jones, University of Utah media law professor, told fortune.
Last month, Dominion made public in a Delaware court filing a series of extraordinary internal exchanges involving the Fox personality. Dominion claims the message it released shows that on-air star broadcasters including Tucker Carlson, Sean Hannity, and Laura Ingraham, as well as Fox founder Rupert Murdoch, do not believe claims of election fraud in 2020 that he or the network is being sold. time.
During a deposition in which Murdoch was asked under oath whether the Fox anchor had endorsed Trump’s claims of a stolen election, the executive admitted that he had, New York Times reported this week.
“I like that we are stronger behind the blame,” he replied.
But Murdoch denied allegations that Fox News, as a whole, endorsed Donald Trump’s claims of a stolen election and appeared to distance himself and the Fox Corporation from the anchor’s statements. When asked if the company generally approved of the narrative, he replied: “Not Fox. No. Not Fox.”
Legal experts say Murdoch may be trying to deflect some false accusations from the company and onto the host.
“I would imagine that there are more than a few people who might suspect that Fox News is going to try to get rid of it, and maybe try to find a scapegoat,” said Joseph Russomanno, an Arizona State University media law professor. fortune.
“A lot of what you see in Rupert Murdoch’s comments appears to be an attempt to protect the Fox News brand, to protect the company, and to protect himself while pointing the finger of blame at others,” he said.
Russomanno said the new evidence, particularly Murdoch’s comments, may indicate that “Fox News will help Dominion prove its case on what it has revealed.” He called it “unusual, if not unprecedented.”
Lie or opinion?
The basis of Fox’s defense is that the network reported false claims about election fraud made by Trump, and biased reporting is protected by the First Amendment.
Fox’s position is that Dominion’s interpretation of the law would “prevent journalists from basic reporting,” a Fox spokesman said. fortune. “According to Dominion, the press is responsible for reporting news allegations made by a sitting President of the United States even when the press explains that the allegations are unproven and many people contest them.”
Dominion has rejected Fox’s defense, arguing that the First Amendment does not apply in this situation. “Dominion is a firm believer in the First Amendment and its protections. As the law has long made clear, the First Amendment does not protect broadcasters who knowingly or recklessly spread falsehoods,” a company spokesperson said. fortune.
The issue for Fox is that the plaintiff can prove the network knew at the time that the statements were false, which would make it easier for Dominion to argue.
“What’s really important to understand is that Fox has a right to bias,” said David Korzenik, an attorney who specializes in media law and the First Amendment. fortune. But he added, “We have no right to publish anything we know to be false or believe to be false.”
The case will come down to whether Dominion can prove Fox published false statements with “actual malice,” a precedent set in a 1964 case. The New York Times is against Sullivan. It requires a “public figure” in a defamation suit to prove the defendant made the statement with “knowledge that it was false or with complete disregard for whether or not it was false.”
In defamation cases, plaintiffs usually argue the second part of the precedent—that the accused acted with complete disregard for the truth, according to Russomanno of Arizona State. But the Fox case stands out because of the evidence that allows Dominion to argue for the former-that the hosts of Fox have fully realized they are publishing lies.
“In this situation, it became clear through Fox’s own testimony that they knew the false information and then went ahead and published it,” he said.
It contains fire
Defamation allegations and scathing testimony have boosted Dominion’s chances of fighting Fox, but the network’s brand and credibility may have suffered even without the judge’s decision.
“[Dominion] has certainly succeeded in drawing attention to the behind-the-scenes scramble that happened at Fox News after the election. In that sense, Fox has lost on some important points,” said Andersen Jones of the University of Utah. He added that the suit has raised questions about how Fox continues its election denial claims in comments made to its own audience.
“This may have an impact on the brand. This may lead to pressure to complete, not to have more of this material when trying,” he said.
The damage to Fox News’ brand and credibility may not alienate its core audience, which has long been considered more loyal than viewers of other channels, although some viewers may be deterred from tuning in often.
“I think there’s a large viewing population that doesn’t care about lies, as long as they’re pro-Trump lies,” said Richard Painter, a law professor who served as the White House’s chief ethics lawyer under George. W. Bush administration, told fortune. “But I don’t think he’s going to retain a larger audience. I think he’s going to lose a good portion of the conservative but moderate group.
The verdict against Fox could lead to organizational reshuffling and shareholder blowback, said Jeffrey Sonnenfield, senior dean of leadership studies at Yale University who has spent four decades advising CEOs and US presidents on leadership. CNN this week.
“The board has a duty to remove these officials for misconduct,” he said, referring to executives such as Fox News CEO Suzanne Scott. He added that Fox could expect shareholder lawsuits, loss of insurance coverage, and even an SEC investigation for “the practice of misleading the board for conspiring to conceal known wrongdoing.”
Fox News, which accounts for most of Fox Corporation’s revenue, has long been accused of focusing too much on keeping viewers in order to maintain profits and increase shareholder returns, which could lead to electoral rejection and could damage the network’s credibility. long, according to Painter.
“I think they’re going to lose credibility very quickly if they don’t reject shareholder primacy,” Painter said. “They can destroy their business model to the detriment of their shareholders, which is a great irony.”
What happens next for Fox depends on whether Dominion can prove actual wrongdoing, if executives like Murdoch are found guilty as well as the host, and how Fox reacts. But in many ways, some of the damage to Fox may have already been done.
“It’s a fire prevention defense. I don’t think most of them can prevent Dominion from getting hit,” Korzenik said. “They might do some content, but that won’t stop boxing from landing.”