“Strongest defamation case I can remember”: Expert says filing shows “Dominion has all the receipts”

"The First Amendment doesn't protect deliberate lies that cause injury to reputation," says Laurence Tribe

By Areeba Shah

Staff Writer

Published March 8, 2023 4:04PM (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)

The latest legal filings in Dominion Voting Systems' $1.6 billion defamation lawsuit against Fox News revealed that executives allowed hosts to air election conspiracy theories they knew were false.

Private text messages, emails, and deposition transcripts show that the network's top hosts and executives derided the stolen election claims in private but opted to air the conspiracy theories anyway to appeal to its viewers. Fox Corp. Chairman Rupert Murdoch acknowledged in a deposition that some hosts "endorsed" the false claims but he chose not to do anything about it.

"The latest filing shows that Dominion has all of the receipts," longtime Harvard Constitutional scholar Laurence Tribe told Salon. "They have a remarkable trove of explicit confessions, essentially from the talking heads themselves, the hosts, and all the way up the chain to Murdoch."

Dominion in its filings claims that it sent more than 3,600 separate communications to Fox News with fact-checks intended to correct false information. In its lawsuit, the election technology company alleged that Fox News "recklessly disregarded the truth" and pushed pro-Trump conspiracy theories about the company because "the lies were good for Fox's business."

In return, Fox has accused Dominion of distortions, misinformation and misattributing quotes as part of an attempt to "smear Fox News and trample on free speech and freedom of the press."

A spokesperson for Dominion responded that "the emails, texts, and deposition testimony speak for themselves."

"[This] case is the strongest defamation case that I can remember seeing in really the 50 years that I've studied this area of law," Tribe said. "It's quite remarkable that the evidence is all there and that it easily meets the appropriately difficult standard that New York Times versus Sullivan established in 1964."

Fox has so far argued that the lawsuit seeks to trample on First Amendment protections and accused Dominion of cherry-picking quotes from its top talent and executives.

While the First Amendment is going to loom over the case from beginning to end, Tribe added, "it is not going to bail out Fox."

"The First Amendment doesn't protect deliberate lies that cause injury to reputation, and that's what we have here," Tribe said. "So, the first amendment is not an absolute shield. It is a very high bar that has to be met by the plaintiff, but it is easily surmounted here."

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The filings also exposed the contempt that host Tucker Carlson privately has for the former president. Two days before the Jan. 6 Capitol riot, Carlson texted staffers that he "can't wait" to be "able to ignore Trump most nights."

"I hate him passionately," he added.

Carlson went on to criticize the Trump era.

"We're all pretending we've got a lot to show for it, because admitting what a disaster it's been is too tough to digest," he wrote. "But come on. There isn't really an upside to Trump."

While the filings revealed that Fox News hosts were well aware that the false claims they aired were baseless, Dominion would have to show that the network acted with "actual malice" for its lawsuit to succeed.

"Recklessness is the standard for actual malice," Norman Eisen, a senior fellow at the Brookings Institution and CNN legal analyst, told Salon.

Carlson has continued to cast serious doubts about the validity of the 2020 election results even though it's clear that he doesn't believe that to be the case, Eisen added, referring to text messages between Carlson and Trump's former lawyer Sidney Powell. In a text message on November 17, 2020, Carlson told Powell "If you don't have conclusive evidence of fraud at that scale, it's a cruel and reckless thing to keep saying."

Eisen also pointed out that the materials from the latest filing and Murdoch's deposition suggest that the Fox Corp. chairman remains "utterly unremorseful" and is still allowing "wrongful conduct" to persist by letting Carlson continue to sow doubt about the 2020 election results.

"He's admitted he has the power to stop it," Eisen said. "So it just undercuts not only what Fox was doing then, but what Fox is continuing to do."

When the case goes to trial, the defense is likely to focus on how much harm Dominion suffered from the false claims and the damages it is seeking, he added. Though Dominion is seeking $1.6 billion in compensatory damages, the figure could balloon to the billions of dollars if Fox is forced to pay punitive damages as well.

But Tribe believes Dominion is more concerned about accountability than money.

"I think Dominion really wants to have these liars exposed for what they are," he said.

Tribe predicted that the verdict in the Fox News case and the recent rulings in the Sandy Hook lawsuits against InfoWars founder Alex Jones would make people whose business model relies on lying for profit think twice.

"It won't necessarily usher in an era of truth and good feeling," Tribe said. "That's too much to hope for, but it is certainly going to make it much more likely that people will be more careful, and that they will certainly not engage in as much provable falsehood that they know to be false. Either that or they're going to become much better at hiding the evidence."

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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