Fox News Media, the Rupert Murdoch-controlled cable group, filed a motion Tuesday to dismiss a $1.6 billion defamation lawsuit brought against it in March by Dominion Voting Systems, an election technology company that accused Fox News of propagating lies that ruined its reputation after the 2020 presidential election.
The Dominion lawsuit and a similar defamation claim brought in February by another election company, Smartmatic, have been widely viewed as test cases in a growing legal effort to battle disinformation in the news media. And they are another byproduct of former President Donald Trump’s baseless attempts to undermine President Joe Biden’s clear victory.
In a 61-page response filed in Delaware Superior Court, the Fox legal team argues that Dominion’s suit threatened the First Amendment powers of a news organization to chronicle and assess newsworthy claims in a high-stakes political contest.
“A free press must be able to report both sides of a story involving claims striking at the core of our democracy,” Fox says in the motion, “especially when those claims prompt numerous lawsuits, government investigations and election recounts.” The motion adds: “The American people deserved to know why President Trump refused to concede despite his apparent loss.”
Dominion’s lawsuit against Fox News presented the circumstances in a different light.
Dominion is among the largest manufacturers of voting machine equipment, and its technology was used by more than two dozen states last year. Its lawsuit described the Fox News and Fox Business cable networks as active participants in spreading a false claim, pushed by Trump’s allies, that the company had covertly modified vote counts to manipulate results in favor of Biden. Lawyers for Trump shared those claims during televised interviews on Fox programs.
“Lies have consequences,” Dominion’s lawyers wrote in their initial complaint. “Fox sold a false story of election fraud in order to serve its own commercial purposes, severely injuring Dominion in the process.” The lawsuit cites instances where Fox hosts, including Lou Dobbs and Maria Bartiromo, uncritically repeated false claims about Dominion made by Trump’s lawyers Rudy Giuliani and Sidney Powell.
A representative for Dominion, whose founder and employees received threatening messages after the negative coverage, did not respond to a request for comment Tuesday night.
Fox News Media has retained two prominent lawyers to lead its defense: Charles Babcock, who has a background in media law, and Scott Keller, a former chief counsel to Sen. Ted Cruz, R-Texas. The lawyers are operating separately from Fox’s defense in the Smartmatic suit, which is being led by Paul Clement, a former solicitor general under President George W. Bush.
“There are two sides to every story,” Babcock and Keller wrote in a statement Tuesday. “The press must remain free to cover both sides, or there will be a free press no more.”
The Fox motion filed Tuesday argues that its networks “had a free-speech right to interview the president’s lawyers and surrogates even if their claims eventually turned out to be unsubstantiated.” It argues that the security of Dominion’s technology had been debated in prior legal claims and media coverage and that the lawsuit did not meet the high legal standard of “actual malice,” a reckless disregard for the truth, on the part of Fox News and its hosts.
Media organizations, in general, enjoy strong protections under the First Amendment. Defamation suits are a novel tactic in the battle over disinformation, but proponents say the strategy has shown some early results. The conservative news outlet Newsmax apologized last month after a Dominion employee, in a separate legal case, accused the network of spreading baseless rumors about his role in the election. Fox Business canceled “Lou Dobbs Tonight” a day after Smartmatic sued Fox in February and named Dobbs as a co-defendant.
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