Dominion Voting Systems, Inc. v. Fox News Network, LLC
Inside the Post-Election Panic and Fear at Fox News
Fox News’ inner turmoil in the aftermath of the 2022 presidential election comes dramatically alive in Dominion Voting Systems, Inc.’s (DVS) 198-page brief in support of its Motion for Summary Judgment in DVS’ Delaware defamation case against Fox. The complete brief can be seen
DVS states its core argument on page 2 of the brief: “Fox knew.” DVS asserts that Fox News personnel knew that election fraud claims were bogus but continued to publish them showing that Fox’s conduct showed “actual malice”—the standard that a plaintiff must meet to recover for defamation. DVS seeks damages from Fox in excess of $1.6 billion. DVS’ motion may not be successful, but the brief provides a useful map of what can expected in the most important case involving the First Amendment’s protections of freedom of the press in recent memory.
The revelations, many in the form of internal texts and Tweets, that following last November’s presidential election Fox News hosts continued to promote demonstrably false election fraud theories on their programs, and through program guests, have been extensively reported. Columnists Michelle Goldberg of The New York Times and Erik Wemple of The Washington Post demonstrated that Fox’s Tucker Carlson, Sean Hannity, Laura Ingraham and others publicly promoted or amplified election fraud theories while mocking the veracity of the advocates of those theories—Sidney Powell, Rudy Giuliani and others—privately.
DVS’ brief is a dramatic, almost novelistic, picture of Fox personnel in panic mode in the days and weeks after the election. It explains why the Fox primetime hosts acted as they did. The brief contains the requisite legalese, but it shows that Fox adopted almost diametrically opposed public and private positions in its election reporting and commentary. The brief illustrates Fox’s organizational values and what happens when a news organization focuses almost exclusively on television ratings, the preservation of its corporate brand, and profits.
Election Night: A Perfect Storm Gathers Around Fox News
Carlson, Ingraham and Hannity wrestled with the fallout of Fox’s early (and accurate) election night projection that President Biden had won Arizona. Fox was the first national news organization to make this projection which, if correct, made President Trump’s reelection almost impossible. The Fox production team perceived that that Fox’s Arizona projection was generating channel switching from Fox to Newsmax and other MAGA-favored media.
Carlson, Ingraham, and Hannity saw their cherished audience was vanishing before their eyes. Simultaneously, Fox’s Arizona election night projection had enraged Trump, who, through White House Chief of Staff Mark Meadows and others, immediately complained to Fox senior management, including Fox Chairman Rupert Murdoch. The Fox hosts were also outraged that reporting by other Fox journalists (and the Arizona election night projection) was driving their MAGA-oriented audience away. The walls were closing in from several directions.
For Carlson, Ingraham and Hannity, Fox Chief Political Correspondent Bret Baier was particularly unhelpful. Baier said on Thursday, November 5, “There is NO evidence of fraud. None.” (20) )
That same day, Carlson wrote his producer, Alex Pfeiffer, “We worked really hard to build what we have. Those fuckers are destroying our credibility. It enrages me." (19) He added that he had spoken with “Laura [Ingraham] and Sean [Hannity] a minute ago and they are highly upset.” (19)
This is worth a pause: Carlson, Ingraham and Hannity were upset that Fox’s election reporting, and particularly its projection of the Arizona results, were “destroying” their credibility, but with whom?
One potential answer is the television audience they had built for Fox, but how could accurate reporting destroy their credibility with their audience? The other potential answer is former President Donald Trump.
Pfeiffer responded, “It's a hard needle to thread, but I really think many on our side are being reckless demagogues right now.” Carlson’s threat sensors were on full alert: “Of course they are. We're not going to follow them.” (Id.) He added, identifying a source of real danger to Fox, “What Trump 's good at is destroying things. He's the undisputed world champion of that. He could easily destroy us if we play it wrong.” (Id.)
Despite Pfeiffer’s internal warning about “reckless demagogues” the next day, November 6, Powell appeared on Lou Dobbs Tonight to describe a secret CIA program called “Hammer and Scorecard” involving a government supercomputer (“Hammer”) and a software program (“Scorecard”) that ran on that computer to change votes. This, said, Powell, “explains a lot what we’re seeing.” (21)
Fox Calls the Election for Biden and the Downward Spiral Continues
On November 7, after waiting for the other networks to go first, Fox called the election for Biden, but the viewer backlash only got worse. Fox Senior Vice President Irena Briganti wrote on the evening of November 7, “our viewers left this week after AZ.” (23)
The Fox hosts clearly prioritized ratings which they equated with “credibility.” On November 7, Carlson texted his producer, “Do the executives understand how much credibility and trust we’ve lost with our audience? We’re playing with fire, for real....an alternative like [N]ewsmax could be devastating to us.” (24)
Again, consider: Carlson’s concern is that Fox’s business executives damaged his relationship (the “credibility” and “trust”) with his viewing audience because the executives allowed the Arizona projection and permitted the election to be called for President Biden? Carlson saw his audience as something he could manage and that incontrovertible facts—Biden won Arizona and the election—were impeding his shaping of the viewing audience.
The whipsaw at Fox continued. The next day, November 8, Maria Bartiromo’s Sunday show, Sunday Morning Futures featured Sidney Powell. She claimed that DVS software had an “algorithm” that was part of a “massive and coordinated effort to steal this election.” (Id.) Bartiromo told Powell, “I know there were voting irregularities. Tell me about that.” (Id.)
Carlson, for one, wasn’t buying it. He texted that night, “[t]the software shit is absurd….Half our viewers have seen the Maria clip.” (25)
On November 9, the impact of Fox's Arizona call became more evident to Fox executives. Carlson wrote a senior Fox executive, “I've never seen a reaction like this, to any media company. Kills me to watch it." (26)
Fact Checking as Outrage
For Fox, the bad news kept on coming. On November 12, reporter Jacqui Heinrich tweeted out a fact check of Trump, who had cited reporting by Hannity and Lou Dobbs (whose Fox program was canceled in 2021) that referred to DVS officials. Heinrich’s Tweet pointed out that there was “no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.” (31)
Carlson texted Hannity, “Please get her fired. Seriously…What the f---? I’m actually shocked … It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.” (31)
Again, the implications are astonishing. A supposed journalist (Carlson) is furious that a colleague (Heinrich) is doing her job (fact checking) because it may have a negative effect on the company’s stock price? Carlson’s focus on Fox’s stock price shows what mattered to Fox.
Whether Fox’s conduct amounts defamed DVS is a matter for the judge and jury in Delaware. At a minimum, DVS’ brief shows that Fox was a purported news organization that, in the aftermath of the presidential election, viewed its audience as malleable. The Fox opinion hosts prioritized ratings and the company’s ratings-dependent stock price above everything.
The Importance of Preserving the Fox News Brand
Hannity wrote Carlson and Ingraham on November 12, “In one week and one debate they destroyed a brand that took 25 years to build and the damage is incalculable.” (29) Carlson responded, “It's vandalism.” (Id.) Fox’s brand, or business image, was everything,
The possibility of competition to Fox emerging loomed large. Hannity wrote, “[S]erious $$ with serious distribution could be a real problem. Imho they need to address but wtf do I know." Briganti wrote on November 12 that she was, “glad the panic button was hit 2 days ago.” (Id.)
Yet, the same day, November 12, Lou Dobbs invited Rudy Giuliani to be a guest on his show. Giuliani, without evidence, accused DVS of election fraud and Dobbs responded, “It’s stunning…they have no ability to audit meaningfully the votes that are cast because the servers are somewhere else…This looks to me like it is the end of what has been a four-and-a-half—the endgame to a four-and-a-half year-long effort to overthrow the president of the United States.” (30) Dobbs continued to broadcast these false allegations until December 10. (31)
By November 18, the Fox hosts’ withering contempt for the carriers of the election fraud message—Sidney Powell and Rudy Giuliani—was confirmed in their own words. That day Carlson wrote Ingraham, “Sidney Powell is lying by the way. I caught her. It’s insane.” (35) Ingraham responded: “Sidney is a complete nut. No one will work with her. Ditto with Rudy.” (Id.)
Fox News in Perspective
DVS’ brief is remarkable in its detail and completeness. It has been supplemented by additional revelations, most recently that Fox Chairman Rupert Murdoch knew that some on-air Fox personnel were “endorsing” election-related lies in the period following the election and did nothing to stop it.
The fear-driven atmosphere after the election shows that the Fox opinion hosts viewed their audience as perishable and moldable. Their extreme frustration, even rage, at reality-based reporting by Fox reporters show that journalism was a secondary issue for Carlson, Ingraham, Hannity and others. The preservation of the Fox brand and stock price were their paramount concerns. While they feared former President Trump, they mocked his messengers, Powell and Giuliani. When a news organization built on spin and lies catches fire, the results are not pretty.
Your comments are very welcome.
 A motion for summary judgment is grantable only when a case contains no genuine issues of fact and the moving party is entitled to judgment as a matter of law. Grants of summary judgment are rare, and essentially unheard of in defamation cases.
 All page references are to DVS’ brief.
 To succeed on its defamation claim against Fox, Dominion must satisfy the standard established in New York Times v. Sullivan, a 1964 Supreme Court case. Sullivan holds that a plaintiff alleging defamation must prove that a defendant published false statements with “actual malice”—meaning that the publication was done “with knowledge that it was false or with reckless disregard of whether it was false or not.” The Sullivan standard has been criticized by conservatives as too strict. Former President Trump campaigned on “opening up” the libel laws.
Special thanks to Rod Fonda and Jim Miller for help with this post.
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One of the greatest long-term hazards of the Trump years is the number of institutions in American culture that have become increasingly politicized. No one can say this hazard is new: look at J. Edgar Hoover and the FBI for starters. And yes, conservatives gripe about The NY Times and Washington Post. But Fox’s exposed lack of anything approaching basic journalistic integrity may lead the list. This article sets out the evidence in stark terms. I am proud to have contributed, but Mark deserves all the plaudits for this masterful piece.