Legal experts: Fox faces "real jeopardy" after court filing lays out "smoking-gun" evidence

“The dream for a plaintiff’s attorney is what Dominion claims to have here,” expert says

Published February 24, 2023 1:04PM (EST)

Protesters Gather Outside Fox News Studios To Call Out Channel's Silence On The Dominion Lawsuit (Michael M. Santiago/Getty Images)
Protesters Gather Outside Fox News Studios To Call Out Channel's Silence On The Dominion Lawsuit (Michael M. Santiago/Getty Images)

Legal experts say that Fox News is in serious trouble after Dominion Voting Systems' legal filing exposed how the conservative news channel's executives and hosts privately disparaged election fraud claims from former President Donald Trump while promoting the content on air. 

Dominion's filing showed Fox chairman Rupert Murdoch describing Trump's claims as "really crazy stuff," and stars Tucker Carlson, Sean Hannity, and Laura Ingraham mocking the lies from the former president's camp.

The experts say that they are waiting for Fox News' formal legal response to the brief but told CNN that they believe it is a massive threat to the channel. 

"It's a major blow," Pentagon Papers attorney Floyd Abrams told the outlet. He explained that the "recent revelations certainly put Fox in a more precarious situation," and that they'll have a hard time defending themselves on First Amendment grounds.

Rebecca Tushnet, a professor of First Amendment law at Harvard, told the outlet that Dominion has a "very strong" filing that "clearly lays out the difference between what Fox was saying publicly and what top people at Fox were privately admitting."

Tushnet added that she has never seen a pre-trial phase of a defamation lawsuit produce as much damning evidence as Dominion's. 

"I don't recall anything comparable to this," Tushnet told CNN. "Donald Trump seems to be very good at generating unprecedented situations."

David Korzenik, an attorney who has represented a number of media organizations, told the outlet that the network is in hot water. He explained that while the law allows for ratings-seeking behavior and bias from media outlets, it does not allow them to publish material they know to be false. 

He says the filing "certainly puts Fox in the actual malice crosshairs and puts them in real jeopardy."

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RonNell Andersen Jones, a professor and media law scholar at the University of Utah, characterized the evidence as "pretty voluminous" and also told the outlet that she has never seen evidence like it in a defamation case as big as this one.

"This is a pretty staggering brief. Dominion's filing here is unique not just as to the volume of the evidence but also as to the directness of the evidence and the timeline of the evidence," she said.

"This 'out of the horse's mouth' evidence of knowing falsity is not something we often see," Jones explained. "When coupled with the compelling storyline that Dominion is telling about motivation — the evidence that at least some key players in the organization were actively looking to advance some election denialism in order to win back viewers who had departed — it makes for a strong actual malice storyline."

Fox News said in a statement that Dominion is trying to generate "noise and confusion," and that their outlet is protected by the landmark Supreme Court ruling in New York Times v. Sullivan.

"Dominion has mischaracterized the record, cherry-picked quotes stripped of key context, and spilled considerable ink on facts that are irrelevant under black-letter principles of defamation law," the network said. "Their motion for summary judgment takes an extreme and unsupported view of defamation law and rests on an accounting of the facts that has no basis in the record."

However, the attorneys who spoke to CNN say Dominion has already built a powerful case against the media giant.

"The dream for a plaintiff's attorney is what Dominion claims to have here," Jones said, "smoking-gun internal statements both acknowledging the lie and deciding to forge ahead with perpetuating it."

By Samaa Khullar

Samaa Khullar is a former news fellow at Salon with a background in Middle Eastern history and politics. She is a graduate of New York University's Arthur L. Carter Journalism institute and is pursuing investigative reporting.

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