Emails and text messages showing Fox News executives and hosts dismissing the same election conspiracy theories they aired improved the chances that Dominion Voting Systems will win their case against the network, legal experts say.
In a brief last week, Dominion included dozens of internal messages sent by Fox co-founder Rupert Murdoch, top executives and on-air personalities such as Tucker Carlson and Sean Hannity. The filing comes amid the voting machine company's $1.6 billion lawsuit against the network that repeatedly promoted false statements that Dominion was part of a widespread effort to fraudulently elect President Joe Biden.
Dominion said that the messages prove that Fox executives and hosts knew the claims they were airing were not true but continued to share them to keep their audience engaged. Some employees called the claims "ludicrous" and "mind-blowingly nuts" in their texts and emails.
The messages could be a powerful piece of evidence against Fox, First Amendment experts say, because they pass a difficult-to-meet standard in these types of cases.
"You just don't often get smoking-gun evidence of a news organization saying internally, 'We know this is patently false, but let's forge ahead with it,'" RonNell Andersen Jones, a University of Utah professor specializing in media law, told The Washington Post.
The 1964 Supreme Court ruling in New York Times v. Sullivan states that plaintiffs like Dominion must show that the party accused of libel published false statements with "actual malice." This means that they must prove Fox made their on-air statements "with knowledge that it was false or with reckless disregard of whether it was false or not."
Considering the number of texts revealed last week that point to that standard, former Harvard Law Prof. Laurence Tribe told The Post that he thinks "Dominion both will and should prevail."
"If anything, the landmark this case is likely to establish will help show that New York Times v. Sullivan" is not an impossible standard to meet, Tribe said.
"While it's true that the Supreme Court [in Sullivan] has set a high bar for plaintiffs, a high bar doesn't mean no bar," Sonja R. West, a First Amendment scholar at the University of Georgia law school, told The Post.
"What we're seeing in this case looks an awful lot like the exception that proves the rule," West said. "The First Amendment often protects speakers who make innocent or even negligent mistakes, but this does not mean they can knowingly tell lies that damage the reputation of others."
Fox actually cited the ruling in its defense against Dominion, claiming that their reporting and commentary was legitimate news-gathering activity that Sullivan protects.
In a statement, Fox News accused Dominion of using "cherry-picked quotes stripped of key context, and spilled considerable ink on facts that are irrelevant under black-letter principles of defamation law."
Fox's lawyers also argued in the network's own brief for summary judgment that it "is plain as day that any reasonable viewer would understand that Fox News was covering and commenting on allegations about Dominion, not reporting that the allegations were true."
The standard of "actual malice" makes it difficult for plaintiffs to win defamation suits because it is hard to prove what a reporter's state of mind was before publication — this means they not only have to prove that the reporter was wrong, but that they knew it and proceeded to publish anyway.
Dominion's lawsuit against Fox has already passed more stages than most defamation suits, Charles Harder, an attorney who has represented Trump and his wife Melania in libel cases, told The Post.
Harder explained that judges often dismiss libel suits before discovery starts but Dominion was able to pass this stage and obtain emails and text messages after months of combing through internal communications and conducting depositions with Fox hosts and executives.
"The key here is that Dominion was allowed to take discovery and obtain the internal communications at Fox," Harder said. "Too many plaintiffs, likely with meritorious cases, have their cases dismissed early and are denied the opportunity to obtain evidence to prove their claims."
It is unlikely that Fox will be able to persuade Delaware Superior Court Judge Eric Davis to dismiss the case. This means they will either have to settle with Dominion or face a jury, which won't be easy on them, Harder says.
"In my experience, juries have no sympathy for media companies that knowingly cause harm to others," he explained. An example of this trend includes a jury in Connecticut that ordered Alex Jones in October to pay $965 million to the families of children killed in the Sandy Hook massacre, a shooting that he repeatedly lied about on his show.
"We just don't have examples of major media cases with this kind of evidentiary record," Andersen Jones said.
West added that the messages are "incredibly damning."
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Former U.S. Attorney Harry Litman predicted on MSNBC that Fox won't be able to evade the lawsuit and that they are "in a world of hurt."
"Typically, in a defamation suit, you maybe have a rogue reporter or a negligent fact-checking system," Litman said, adding that Fox was "just continuing to send stuff out that they knew was false and only for ratings."
Litman said that the consequences for Fox could be severe.
"The Supreme Court has made clear, there is some value in reporters getting it wrong in a fast-moving news cycle, etc.," he explained. "There is zero value, social value, for any of us in knowing lies. And that is what they are accused of doing with unusually strong proof. They're looking at a gargantuan verdict or settlement and a huge reputational hit."
In a conversation with The Guardian published on Monday, Tribe also added that the text message evidence is enough to find Fox News liable for defamation.
The brief, he said, "establishes that Fox was not only reckless," but that they were "deliberately lying and knew they were lying about the nature of Dominion's machines and the supposed way they could be manipulated."
"I have never seen a defamation case with such overwhelming proof that the defendant admitted in writing that it was making up fake information in order to increase its viewership and its revenues," Tribe said. "Fox and its producers and performers were lying as part of their business model."
Scott Horton, a Columbia Law School lecturer and media law expert, also told The Guardian that the Dominion brief was "the most remarkable discovery filing I've ever read in a commercial litigation."
"A summary judgment motion by a plaintiff in this kind of case is almost unheard of," he explained. "These suits usually fail because you can't prove the company you're suing knew they were spreading falsehoods. That you would have evidence they knew it was a lie is almost unheard of … in this case the sheer volume of all the email and text messages is staggering."