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    Inside Fox’s Legal and Business Debacle

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    In August 2021, the Fox Corporation board of directors gathered on the company’s movie studio lot in Los Angeles. Among the topics on the agenda: Dominion Voting Systems’ $1.6 billion defamation lawsuit against its cable news network, Fox News.The suit posed a threat to the company’s finances and reputation. But Fox’s chief legal officer, Viet Dinh, reassured the board: Even if the company lost at trial, it would ultimately prevail. The First Amendment was on Fox’s side, he explained, even if proving so could require going to the Supreme Court.Mr. Dinh told others inside the company that Fox’s possible legal costs, at tens of millions of dollars, could outstrip any damages the company would have to pay to Dominion.That determination informed a series of missteps and miscalculations over the next 20 months, according to a New York Times review of court and business records, and interviews with roughly a dozen people directly involved in or briefed on the company’s decision-making.The case resulted in one of the biggest legal and business debacles in the history of Rupert Murdoch’s media empire: an avalanche of embarrassing disclosures from internal messages released in court filings; the largest known settlement in a defamation suit, $787.5 million; two shareholder lawsuits; and the benching of Fox’s top prime-time star, Tucker Carlson.And for all of that, Fox still faces a lawsuit seeking even more in damages, $2.7 billion, filed by another subject of the stolen-election theory, the voting software company Smartmatic, which can now build on the evidence produced in the Dominion case to press its own considerable claims.In the month since the settlement, Fox has refused to comment in detail on the case or the many subsequent setbacks. That has left a string of unanswered questions: Why did the company not settle earlier and avoid the release of private emails and texts from executives and hosts? How did one of the most potentially prejudicial pieces of evidence — a text from Mr. Carlson about race and violence — escape high-level notice until the eve of the trial? How did Fox’s pretrial assessment so spectacularly miss the mark?Repeatedly, Fox executives overlooked warning signs about the damage they and their network would sustain, The Times found. They also failed to recognize how far their cable news networks, Fox News and Fox Business, had strayed into defamatory territory by promoting President Donald J. Trump’s election conspiracy theories — the central issue in the case. (Fox maintains it did not defame Dominion.)When pretrial rulings went against the company, Fox did not pursue a settlement in any real way. Executives were then caught flat-footed as Dominion’s court filings included internal Fox messages that made clear how the company chased a Trump-loving audience that preferred his election lies — the same lies that helped feed the Jan. 6 Capitol riots — to the truth.It was only in February, with the overwhelming negative public reaction to those disclosures, that Mr. Murdoch and his son with whom he runs the company, Lachlan Murdoch, began seriously considering settling. Yet they made no major attempt to do so until the eve of the trial in April, after still more damaging public disclosures.At the center of the action was Mr. Dinh and his overly rosy scenario.Mr. Dinh declined several requests for comment, and the company declined to respond to questions about his performance or his legal decisions. “Discussions of specific legal strategy are privileged and confidential,” a company representative said in a statement.Defenders of Mr. Dinh, a high-level Justice Department official under President George W. Bush, say his initial position was sound. Because of the strength of American free speech protections, Dominion needed to clear a high bar. And unfavorable rulings from the Delaware judge who oversaw the case hurt Fox’s chances, they argue.“I think Viet and Fox carried out just the right strategy by moving down two paths simultaneously — first, mounting a strong legal defense, one that I think would have eventually won at the appellate stage, and, second, continuously assessing settlement opportunities at every stage,” said William P. Barr, the former attorney general under Mr. Trump who worked with Mr. Dinh earlier in his career. Of course, the case would have been difficult for any lawyer. As the internal records showed, executives knew conspiracy theories about Dominion were false yet did not stop hosts and guests from airing them.That placed Fox in the ultimate danger zone, where First Amendment rights give way to the legal liability that comes from knowingly promoting false statements, referred to in legalese as “actual malice.”An Unanswered LetterMaria Bartiromo was the first Fox host to air the Dominion conspiracy theory.Roy Rochlin/Getty ImagesThe fall of 2020 brought Fox News to a crisis point. The Fox audience had come to expect favorable news about President Trump. But Fox could not provide that on election night, when its decision desk team was first to declare that Mr. Trump had lost the critical state of Arizona.In the days after, Mr. Trump’s fans switched off in droves. Ratings surged at the smaller right-wing rival Newsmax, which, unlike Fox, was refusing to recognize Joseph R. Biden’s victory.The Fox host who was the first to find a way to draw the audience back was Maria Bartiromo. Five days after the election, she invited a guest, the Trump-aligned lawyer Sidney Powell, to share details about the false accusations that Dominion, an elections technology company, had switched votes from Mr. Trump to Mr. Biden.Soon, wild claims about Dominion appeared elsewhere on Fox, including references to the election company’s supposed (but imagined) ties to the Smartmatic election software company; Hugo Chávez, the Venezuelan dictator who died in 2013; George Soros, the billionaire investor and Democratic donor; and China.On Nov. 12, a Dominion spokesman complained to the Fox News Media chief executive, Suzanne Scott, and the Fox News Media executive editor, Jay Wallace, begging them to make it stop. “We really weren’t thinking about building a litigation record as much as we were trying to stop the bleeding,” Thomas A. Clare, one of Dominion’s lawyers, said recently at a post-mortem discussion of the case held by a First Amendment advocacy group, the Foundation for Individual Rights and Expression.As Fox noted in its court papers, its hosts did begin including company denials. But as they continued to give oxygen to the false allegations, Dominion sent a letter to the Fox News general counsel, Lily Fu Claffee, demanding that Fox cease and correct the record. “Dominion is prepared to do what is necessary to protect its reputation and the safety of its employees,” the letter warned.It came amid more than 3,600 messages that Dominion sent debunking the conspiracy theories to network hosts, producers and executives in the weeks after the election.Such letters often set off internal reviews at news organizations. Fox’s lawyers did not conduct one. Had they done so, they may have learned of an email that Ms. Bartiromo received in November about one of Ms. Powell’s original sources on Dominion.The source intimated that her information had come from a combination of dreams and time travel. (“The wind tells me I’m a ghost but I don’t believe it,” she had written Ms. Powell.)Dan Novack, a First Amendment lawyer, said that if he ever stumbled upon such an email in a client’s files, he would “physically wrest my client’s checkbook from them and settle before the police arrive.”Fox, however, did not respond to the Dominion letter or comply with its requests — now a key issue in a shareholder suit filed in April, which maintains that doing so would have “materially mitigated” Fox’s legal exposure.The CaseDominion’s chief executive, John Poulos, at a news conference in April after the company settled its defamation suit against Fox.Pete Marovich for The New York TimesThree months after the election, another voting technology company tied to the Dominion conspiracy, Smartmatic, filed its own defamation suit against Fox, seeking $2.7 billion in damages. Dominion told reporters that it was preparing to file one, too.Mr. Dinh was publicly dismissive.“The newsworthy nature of the contested presidential election deserved full and fair coverage from all journalists, Fox News did its job, and this is what the First Amendment protects,” Mr. Dinh said at the time in a rare interview with the legal writer David Lat. “I’m not at all concerned about such lawsuits, real or imagined.”Mr. Dinh was saying as much inside Fox, too, according to several people familiar with his actions at the time. His words mattered.A refugee of Vietnam who fled the Communist regime and landed with his family in the United States virtually penniless, he graduated from Harvard and Harvard Law and was a clerk for Justice Sandra Day O’Connor. As an assistant attorney general for George W. Bush, he helped draft the Patriot Act expanding government surveillance powers. He and Lachlan Murdoch later became so close that Mr. Dinh, 55, is godfather to one of Mr. Murdoch’s sons.Mr. Dinh took a hands-on approach to the Dominion case, and eventually split with a key member of the outside team, Charles L. Babcock of Jackson Walker, according to several people with knowledge of the internal discussions.After disagreement over the best way to formulate Fox’s defense, Jackson Walker and Fox parted ways. George Freeman, executive director of the Media Law Resource Center and a former assistant general counsel for The Times, said Mr. Babcock’s exit had left Fox down a seasoned defamation defense lawyer. “He’s probably the best trial lawyer in the media bar,” Mr. Freeman said.By then, Mr. Dinh was fashioning the legal team more in his own image, having brought in a longtime colleague from the Bush administration, the former solicitor general Paul Clement.Mr. Clement’s presence on the Fox team was itself an indication of Mr. Dinh’s willingness to take the case all the way to the Supreme Court — few members of the conservative legal bar had more experience there.Mr. Dinh hired Dan Webb, a former U.S. attorney, for the role of lead litigator, succeeding Mr. Babcock. Mr. Webb was known for representing a beef manufacturer that sued ABC News over reports about a product sometimes referred to as “pink slime.” The case was settled in 2017 for more than $170 million.The Fox legal team based much of the defense on a doctrine known as the neutral reportage privilege. It holds that news organizations cannot be held financially liable for damages when reporting on false allegations made by major public figures as long as they don’t embrace or endorse them.“If the president of the United States is alleging that there was fraud in an election, that’s newsworthy, whether or not there’s fraud in the election,” Mr. Clement told Jim Geraghty, a writer for National Review and The Washington Post. “It’s the most newsworthy thing imaginable.”Fox remained so confident, the company said in reports to investors that it did not anticipate the suit would have “a material adverse effect.”But the neutral reportage privilege is not universally recognized. Longtime First Amendment lawyers who agree with the principle in theory had their doubts that it would work, given that judges have increasingly rejected it.“Most astute media defamation defense lawyers would not, and have not for a very long time, relied on neutral reportage — certainly as a primary line of defense, because the likelihood that a court would accept it as a matter of First Amendment law has continued to diminish over time,” said Lee Levine, a veteran media lawyer. An early warning came in late 2021. The judge in the case, Eric M. Davis, rejected Fox’s attempt to use the neutral reportage defense to get the suit thrown out altogether, determining that it was not recognized under New York law, which he was applying to the case. Even if it was recognized, Fox would have to show it reported on the allegations “accurately and dispassionately,” and Dominion had made a strong argument that Fox’s reporting was neither, the judge wrote in a ruling.That ruling meant that Dominion, in preparing its arguments, could have access to Fox’s internal communications in discovery.That was a natural time to settle. But Fox stuck with its defense and its plan, which always foresaw a potential loss at trial. “There was a strong belief that the appeal could very well be as important, or more important, than the trial itself,” Mr. Webb said at the post-mortem discussion of the case with Mr. Clare.Things Fall ApartText messages that came to light in the Dominion case included assertions by the Fox host Tucker Carlson that voter fraud could not have made a material difference in the election.Rebecca Noble for The New York TimesFox executives did not foresee how daunting the discovery process would become.At nearly every step, the court overruled Fox’s attempts to limit Dominion’s access to private communications exchanged among hosts, producers and executives. The biggest blow came last summer, after a ruling stating that Dominion could review messages from the personal phones of Fox employees, including both Murdochs.The result was a treasure trove of evidence for Dominion: text messages and emails that revealed the doubts that Rupert Murdoch had about the coverage airing on his network, and assertions by many inside Fox, including Mr. Carlson, that fraud could not have made a material difference in the election.The messages led to even more damaging revelations during depositions. After Dominion’s lawyers confronted Mr. Murdoch with his own messages showing he knew Mr. Trump’s stolen election claims were false, he admitted that some Fox hosts appeared to have endorsed stolen election claims.That appeared to have undermined Fox’s defense. But Mr. Dinh told Mr. Murdoch afterward that he thought the deposition had gone well, according to a person who witnessed the exchange. Mr. Murdoch then pointed a finger in the direction of the Dominion lawyer who had just finished questioning him and said, “I think he would strongly disagree with that.”During Mr. Carlson’s deposition last year, Dominion’s lawyers asked about his use of a crude word to describe women — including a ranking Fox executive. They also mentioned a text in which he discussed watching a group of men, who he said were Trump supporters, attack “an Antifa kid.” He lamented in the text, “It’s not how white men fight,” and shared a momentary wish that the group would kill the person. He then said he regretted that instinct.Mr. Carlson felt blindsided by the extent of the questions, according to associates and confirmed by a video leaked to the left-leaning group Media Matters: “Ten hours,” he exclaimed to people on the set of his show, referring to how long he was questioned. “It was so unhealthy, the hate I felt for that guy,” he said about the Dominion lawyer who had questioned him.There is no indication that Mr. Carlson’s texts tripped alarms at the top of Fox at that point.The alarms rang in February, when reams of other internal Fox communications became public. The public’s reaction was so negative that some people at the company believed that a jury in Delaware — which was likely to be left-leaning — could award Dominion over a billion dollars. Yet the company made no serious bid to settle.With prominent First Amendment lawyers declaring that Dominion had an exceptionally strong case, a siege mentality appeared to set in.In the interview with Mr. Geraghty, Mr. Clement said Fox was being singled out for its politics. Unlike mainstream media, which tend to report on major events the same way and have power in numbers, he said, “conservative media, or somebody like Fox, is in a much more vulnerable position.” He added, “If they report it, and the underlying allegations aren’t true, they’re much more out there on an island.”Reflecting the view of Mr. Dinh’s supporters even now, Mr. Barr, the former attorney general, said the “mainstream media stupidly cheered on Dominion’s case,” which he said they would come to regret because it would weaken their First Amendment protections. (He made a similar argument in March in The Wall Street Journal.)But Judge Davis had determined that Fox had set itself apart by failing to conduct “good-faith, disinterested reporting” in the segments at issue in the suit. That was in large part why, just ahead of opening statements, he ruled that Fox could not make neutral reportage claims that the conspiracy theory was newsworthy at the trial, knocking out a pillar of Fox’s strategy. (He also ruled that Fox had, indeed, defamed the company in airing the false statements.)Mr. Webb, who had already drafted much of his opening statement and tested it with a focus group, had to remove key parts of his remarks, he said in the post-trial discussion with Mr. Clare.The Directors Step InRupert and Lachlan Murdoch. Rupert Murdoch acknowledged in a deposition that several hosts for his networks promoted the false narrative that the 2020 election was stolen from President Donald J. Trump.Drew Angerer/Getty ImagesAll along, the Fox board had been taking a wait-and-see approach.But the judge’s pretrial decisions began to change the board’s thinking. Also, in those final days before the trial, Fox was hit with new lawsuits. One, from the former Fox producer Abby Grossberg, accused Mr. Carlson of promoting a hostile work environment. Another, filed by a shareholder, accused the Murdochs and several directors of failing to stop the practices that made Fox vulnerable to legal claims.The weekend before trial was to begin, with jury selection already underway, the board asked Fox to see the internal Fox communications that were not yet public but that could still come out in the courtroom.That Sunday, the board learned for the first time of the Carlson text that referred to “how white men fight.” Mr. Dinh did not know about the message until that weekend, according to two people familiar with the matter. Fox’s lawyers believed it would not come out at trial, because it was not relevant to the legal arguments at hand. The board, however, was concerned that Dominion was prepared to use the message to further undermine the company with the jury.In an emergency meeting that Sunday evening, the board — with an eye on future lawsuits, including those from Smartmatic and Ms. Grossberg — decided to hire the law firm Wachtell, Lipton Rosen & Katz to investigate whether any other problematic texts from Mr. Carlson or others existed.Over that same weekend, Lachlan Murdoch told his settlement negotiators to offer Dominion more than the $550 million for which he had already received board approval.In interviews, people with knowledge of the deliberations disagreed about how much Mr. Carlson’s text contributed to the final $787.5 million settlement price.By the time the board learned of the message, the Murdochs had already determined that a trial loss could be far more damaging than they were initially told to expect. A substantial jury award could weigh on the company’s stock for years as the appeals process played out.“The distraction to our company, the distraction to our growth plans — our management — would have been extraordinarily costly, which is why we decided to settle,” Lachlan Murdoch said at an investment conference this month.But there was broad agreement among people with knowledge of the discussions that the Carlson text, and the board’s initiation of an investigation, added to the pressure to avoid trial.The text also helped lead to the Murdochs’ decision a few days later to abruptly pull Mr. Carlson off the air. Their view had hardened that their top-rated star wasn’t worth all the downsides he brought with him.Fox’s trouble has not ended. In the weeks since the settlement and Mr. Carlson’s ouster, prime-time ratings have dropped (though Fox remains No. 1 in cable news), and new plaintiffs sued the network, most recently a former Homeland Security official, Nina Jankowicz.As one of Ms. Jankowicz’s lawyers said in an interview, the Dominion case “signals that there is a path.”Still pending is the Smartmatic suit. In late April, Fox agreed to hand over additional internal documents relating to several executives, including the Murdochs and Mr. Dinh. In a statement reminiscent of Mr. Dinh’s early view of the Dominion case, the network said that the $2.7 billion in damages sought by Smartmatic — operating in only one county in 2020 — were implausible and that Fox was protected by the First Amendment.“We will be ready to defend this case surrounding extremely newsworthy events when it goes to trial, likely in 2025,” the statement said. More

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      Fox News Remains an Aberration in American Journalism

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      The decision by Dominion Voting Systems on Tuesday to settle its defamation suit against Fox News is no doubt a disappointment to the many people who have been viciously demeaned and insulted by the network’s hosts over the years and who now won’t get to see those hosts writhe on the witness stand as they are forced to admit their lies. But the settlement is also a lost opportunity for the profession of journalism.A six-week trial, especially if it ended in a victory for Dominion, could have demonstrated to the public in painstaking detail what an abject aberration Fox has become among American news organizations. In-person testimony would have illustrated what the pre-trial evidence had begun to show: that Fox hosts and executives knew full well that the conspiracy theories they peddled about the outcome of the 2020 election were false, but they broadcast them anyway to hang on to viewers who didn’t want to hear the truth. A loss by Fox, with a staggering damage award, would have demonstrated that its behavior was so exceptional and outrageous that it had to be punished.People inclined to believe that all news organizations deliberately lie to build their audience may not consider Fox’s actions to be the least bit aberrant. But if that were true, there would be a lot more trials like the one that almost happened in this case. In fact, there have been very few media trials in recent years — usually in the single digits each year, according to one study — compared with the thousands of civil trials each year. Most defamation cases are dismissed before they ever get near a trial, in part because the plaintiff could not come close to proving a news organization met the “actual malice” standard set out in the landmark New York Times v. Sullivan case of 1964, but also often because the plaintiff couldn’t even convince the judge that the defamatory material was false. News organizations also win dismissals by persuading judges that the material at issue was a legitimate opinion or was a “fair report” of allegations made at a public meeting or trial.Fox couldn’t persuade a judge of any of those defenses. In fact, the judge in this case, Eric Davis, ruled in March that it “is CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true” — a decision that was a huge setback for Fox and may have led to its eagerness to settle the case.Most defamation cases that are not dismissed are settled before trial, and the Dominion case essentially fits that pattern even though a jury had already been selected. But the size of the monetary settlement that Fox must pay, $787.5 million, also makes it a huge outlier. The next-largest publicly disclosed settlement of a defamation case against a major news organization was reached in 2017, when ABC News settled a case for at least $177 million. (Alex Jones, who was ordered last year to pay over $1.4 billion to families of victims in the Sandy Hook shooting, is not part of a legitimate news organization.)Still, nothing would have compared with a full-length trial in this case and a victory for Dominion, which many legal experts said was a strong possibility. That kind of defeat for a major news organization almost never happens, and the reason is that unlike their counterparts at Fox, journalists in conventional newsrooms don’t actually plot to deceive their audiences. They might make mistakes, they might be misled by a source or cast a story in a way they later regret, but with very rare exceptions they don’t deliberately lie.The emails and text messages demonstrating Fox’s knowing deceit, which came out in pre-trial discovery, were shocking both in their cynicism and in their deviation from industry norms. Vociferous press critics on the right and the left will scoff at this notion, but the fact is that journalists in functional newsrooms want to tell the truth. And they do so not because they fear getting sued but because that’s why they got into the business. I’ve worked for more than four decades in six American newsrooms, large and small, and the pattern of behavior shown by Fox would have been unthinkable in any of them at any time.That’s why a loss by Fox would not have raised significant press freedom issues, nor would it have increased the threat that journalists would regularly be sued for defamation. Because of the Sullivan case, news organizations are protected from libel judgments if they do not recklessly disregard the truth or engage in actual malice, which almost all newsrooms scrupulously avoid doing. Fox, however, sped right past those red lights, got caught and then spent an enormous amount of money to avoid the stain of a potential guilty verdict and the spectacle of its chairman, Rupert Murdoch, testifying to its dysfunction. (The company again demonstrated its disdain for the truth by issuing a statement on Tuesday afternoon saying the settlement demonstrated its “commitment to the highest journalistic standards.”) A second chance at clarity is coming with a libel suit against Fox by a different voting-technology company, Smartmatic. Maybe this time the opportunity to perform a public service by conducting a trial will outweigh the temptation of a Fox settlement offer.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Fox Settles Dominion Suit, but Smartmatic Case and Others Loom

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      Another election technology company, Smartmatic, is suing news outlets, including Fox, over false claims of election fraud, and Dominion has other cases pending.On Tuesday, Fox News hastily agreed to pay $787.5 million to resolve a defamation suit filed by Dominion Voting Systems — among the largest settlements ever in a defamation case — just hours after the jury for the trial was selected. In addition to the whopping financial settlement, Fox conceded that “certain claims” it had made about Dominion were false.In settling with Dominion, the network avoided the possible embarrassment of a trial that could have exposed its inner workings. Rupert Murdoch, the 92-year-old Fox News founder, and the Fox host Tucker Carlson were potential witnesses.Dominion sued the cable news network two years ago, after it aired stories falsely claiming that Dominion’s voting machines were susceptible to hacking and had flipped votes to Joseph R. Biden Jr. that had been cast for Donald J. Trump, who was president.But the settlement with Dominion is not the only legal action that some news outlets are facing after making bogus claims about the 2020 elections.Dominion v. NewsmaxNewsmax apologized in 2021 for spreading false claims that a Dominion employee rigged voting machines.Callaghan O’Hare/ReutersIn 2021, the right-wing news outlet Newsmax formally apologized for spreading false allegations that an employee of Dominion had rigged voting machines. In a statement on its website, Newsmax said it had found “no evidence” that the Dominion employee, Eric Coomer, had manipulated voting machines in an effort to sabotage Mr. Trump’s re-election bid.“On behalf of Newsmax, we would like to apologize for any harm that our reporting of the allegations against Dr. Coomer may have caused to Dr. Coomer and his family,” the statement said.Dominion also sued Mike Lindell, the chief executive of MyPillow and an outspoken supporter of the former president, and two of Mr. Trump’s lawyers, Sidney Powell and Rudy W. Giuliani, for their baseless claims about election fraud. In 2021, a federal judge refused to throw out the suits against them. And in October, the Supreme Court declined to consider Mr. Lindell’s bid to fend off his suit. This month, he told The New York Times, “I will never back down, ever, ever, ever.” The lawsuits are ongoing.Smartmatic v. Fox NewsIn 2021, Fox News was also sued by Smartmatic, which provided voting technology in Los Angeles County for the 2020 election. In its complaint, Smartmatic wrote, “Fox joined the conspiracy to defame and disparage Smartmatic and its election technology and software,” adding, “The story led a mob to attack the U.S. Capitol.” The suit, filed in New York State Supreme Court, seeks at least $2.7 billion in damages.In February, a New York appeals court denied Fox’s request to dismiss the case, and a New York judge said last month that the case could proceed. A trial date has not been set.“We will be ready to defend this case surrounding extremely newsworthy events when it goes to trial, likely in 2025,” Fox News said in a statement on Wednesday.Smartmatic v. NewsmaxSmartmatic also brought defamation litigation against Newsmax, accusing it of spreading falsehoods about the company. Judge Eric M. Davis, who was also assigned to the Fox-Dominion trial, will preside. In February, Newsmax lost its bid to end the litigation, and Judge Davis let the case move forward.Smartmatic v. One America NewsThe headquarters of One America News in San Diego.The New York TimesIn 2021, Smartmatic also sued One America News Network, accusing the news organization of airing disinformation about the 2020 election even after the company warned it to stop. In June, a judge denied a request to dismiss the lawsuit.Lou DobbsThis month — days before jury selection began for the Dominion case — Fox News and Lou Dobbs, a former longtime Fox Business host and loyal Trump supporter, settled a defamation case with Majed Khalil, a Venezuelan businessman. Mr. Dobbs and Ms. Powell, a regular guest on Fox News, falsely claimed on the air and in related Twitter posts that Mr. Khalil had been part of a conspiracy to flip votes. One of the tweets said he was “the effective ‘COO’ of the election project.” Fox canceled Mr. Dobbs’s show in February 2021. More

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      Why Fox News Had to Settle With Dominion

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      WILMINGTON, Del. — It is deeply disappointing that Fox News settled the defamation lawsuit brought by Dominion Voting Systems before Rupert Murdoch and his roster of celebrity propagandists had to testify. But it is not surprising. Fox News, after all, had no viable defense.On Tuesday, I arrived at Superior Court here at 7 a.m. to secure a seat for what I, like many others, hoped would be an epic trial about the falsehoods Fox aired after the 2020 election, when it accused Dominion and the voting technology company Smartmatic of perpetrating heinous voter fraud. Jury selection took all morning, and opening statements were scheduled for the afternoon.More than anything, I was curious about what Fox’s lawyers would say, because there seemed so little that they could say. Part of Fox’s sinister on-air brilliance is the way it encases its audience in a comprehensive alternative reality. But now, for once, the network would be forced to account for itself outside the right-wing bubble. How it would possibly do so was a matter of great suspense.Already, Eric Davis, the judge in the case, had ruled in Dominion’s favor on key issues. “The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true,” he wrote in a March 31 pretrial decision, a rare judicial use of all-caps bold italics. Fox’s statements, he ruled, constituted “defamation per se.”Davis prohibited Fox from arguing that the network was merely reporting on allegations made by Donald Trump and his lawyers, which Fox contended were newsworthy whether or not they were true. So the case would turn not on whether Fox had aired defamatory falsehoods, which Davis determined it had, but on whether, in airing defamatory falsehoods, Fox had displayed “actual malice” — essentially, reckless disregard for the truth.The evidence for such reckless disregard brought to light by Dominion’s lawyers during the discovery phase of the case was already overwhelming, and the trial promised more to come. A filing that Fox’s lawyers made last week demonstrated their predicament. In it, the attorneys laid out some of the points they planned to make in their opening argument, asking for “guidance from the court to ensure that it can make its opening statement without undue interruption and delay.” Those points looked a lot like an attempt by Fox to use a legal backdoor to smuggle in arguments that the judge had already forbidden.“To defend this case, Fox witnesses must be able to testify about the reasons why Fox covered the allegations on the air,” said the filing. “Fox witnesses will all testify that they covered the Dominion-related allegations because the allegations were part of the most newsworthy story of the day.” This, even though Davis had specifically ruled that this argument was invalid because, among other things, “the evidence does not support” the contention that Fox “conducted good-faith, disinterested reporting.”In order to defend Fox from a finding of actual malice, its lawyers seemed set on bringing Fox’s alternative reality into the courtroom, acting as if taking Trump and his attorneys at their word was a perfectly reasonable thing to do. Testimony and documentary evidence, Fox’s lawyers said in the filing, “will show that the president and the lawyers bringing the election fraud lawsuits continuously told Fox that they had evidence to support their claims and that they would be presenting that evidence to courts.” That, in turn, explains why the Fox hosts “did not know that the president’s allegations were false or harbor serious doubts about the truth of the allegations.”In other words, they can’t be blamed for treating the president of the United States as a reliable source.Responding to the filing, Davis refused to give Fox the green light it sought. If the network’s lawyers wanted to make the arguments that they were telegraphing, they would have to take their chances in front of the jury, and risk getting shut down. On Tuesday morning, Davis reminded the parties that they would not be able to make arguments “about things that I’ve ruled inadmissible.” I was waiting to hear what Fox’s lawyers were going to argue instead.But after lunch, the jury didn’t return, and Davis came back to the courtroom only briefly before beckoning some of the lawyers out. The hours ticked by while the journalist-filled audience grew increasingly restless. Courtroom protocol against texting or using the internet gradually collapsed. News broke that the judge had ordered a special master to investigate whether Fox had “complied with their discovery obligations.” (The network had previously been sanctioned for withholding evidence.) Rumors about a settlement buzzed through the room.At 4 p.m., the jury filed back in, and the judge confirmed that the trial was over before it began.Fox is paying Dominion $787.5 million, which appears to be one of the largest defamation settlements in history and is one that constitutes a humiliating admission of fault by the network, even though, as The New York Times’s Jim Rutenberg reported, the deal doesn’t require Fox to apologize. But the public will be deprived of seeing Murdoch, Sean Hannity, Tucker Carlson and several of their colleagues grilled on the stand, forced to reckon with the real world, unable to fall back on the dense lattice of misinformation that typically sustains Fox’s narratives.At least, the public will be deprived for now. Smartmatic is still suing Fox for $2.7 billion, though no trial date has been announced yet. “Dominion’s litigation exposed some of the misconduct and damage caused by Fox’s disinformation campaign,” Smartmatic lawyer J. Erik Connolly said in a statement on Tuesday. “Smartmatic will expose the rest.”I’m not sure I believe it — Fox has just shown the world what it’s willing to pay to avoid the unmasking. But reality isn’t done with Murdoch and the rest of them yet.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Another Texas Election Official Quits After Threats From Trump Supporters

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      Heider Garcia, the top election official in deep-red Tarrant County, had previously testified about being harassed by the former president’s right-wing supporters.Heider Garcia, the head of elections in Tarrant County, Texas, announced this week that he would resign after facing death threats, joining other beleaguered election officials across the nation who have quit under similar circumstances.Mr. Garcia oversees elections in a county where, in 2020, Donald J. Trump became only the second Republican presidential candidate to lose in more than 50 years. Right-wing skepticism of the election results fueled threats against him, even though the county received acclaim from state auditors for its handling of the 2020 voting. Why it’s importantWith Mr. Trump persistently repeating the lie that he won the 2020 election, many of his supporters and those in right-wing media have latched on to conspiracy theories and joined him in spreading disinformation about election security. Those tasked with running elections, even in deeply Republican areas that did vote for Mr. Trump in 2020, have borne the brunt of vitriol and threats from people persuaded by baseless claims of fraud.The threats made against himMr. Garcia detailed a series of threats as part of his written testimony last year to the Senate Judiciary Committee, which he urged to pass better protections for election officials.One of the threats made online that he cited: “hang him when convicted from fraud and let his lifeless body hang in public until maggots drip out his mouth.”He testified that he had repeatedly been the target of a doxxing campaign, including the posting of his home address on Twitter after Sidney Powell, a lawyer for Mr. Trump, falsely accused him on television and social media of manipulating election results.Mr. Garcia also testified that he received direct messages on Facebook with death threats calling him a “traitor,” and one election denier used Twitter to urge others to “hunt him down.”Heider Garcia’s backgroundMr. Garcia, whose political affiliation is not listed on public voting records, has overseen elections in Tarrant County since 2018. Before that, he had a similar role outside Sacramento in Placer County, Calif.He did not immediately respond to a request for comment on Tuesday.Election deniers have fixated on Mr. Garcia’s previous employment with Smartmatic, an election technology company that faced baseless accusations of rigging the 2020 election and filed a $2.7 billion defamation lawsuit against Fox News that is similar to one brought by the voting machine company Dominion, which was settled on Tuesday. He had several roles with Smartmatic over more than a dozen years, ending in 2016, according to his LinkedIn profile. His work for the company in Venezuela, a favorite foil of the right wing because of its troubled socialist government, has been a focus of conspiracy theorists.What he said about the threats“I could not sleep that night, I just sat in the living room, until around 3:00 a.m., just waiting to see if anyone had read this and decided to act on it.”— From Mr. Garcia’s written testimony last year, describing the toll that the posting of his address online, along with other threats, had taken on him and his family.Other election officials who have quitAll three election officials resigned last year in another Texas county, Gillespie — at least one of whom cited repeated death threats and stalking.A rural Virginia county about 70 miles west of Richmond lost its entire elections staff this year after an onslaught of baseless voter fraud claims, NBC News reported.Read moreElection officials have resorted to an array of heightened security measures as threats against them have intensified, including hiring private security, fireproofing and erecting fencing around a vote tabulation center.The threats have led to several arrests by a Justice Department task force that was created in 2021 to focus on attempts to intimidate election officials. More

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      First Amendment Scholars Want to See the Media Lose These Cases

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      Some legal experts say it is time to draw a sharp line between protected speech and harmful disinformation.The lawyers and First Amendment scholars who have made it their life’s work to defend the well-established but newly threatened constitutional protections for journalists don’t usually root for the media to lose in court.But that’s what is happening with a series of recent defamation lawsuits against right-wing outlets that legal experts say could be the most significant libel litigation in recent memory.The suits, which are being argued in several state and federal courts, accuse Project Veritas, Fox News, The Gateway Pundit, One America News and others of intentionally promoting and profiting from false claims of voter fraud during the 2020 election, and of smearing innocent civil servants and businesses in the process.If the outlets prevail, these experts say, the results will call into question more than a half-century of precedent that created a clear legal framework for establishing when news organizations can be held liable for publishing something that’s not true.Libel cases are difficult to prove in the United States. Among other things, public figures have to show that someone has published what the Supreme Court has called a “calculated falsehood” or acted with reckless disregard for the truth.But numerous First Amendment lawyers said they thought the odds were strong that at least one of these outlets would suffer a rare loss at trial, given the extensive and well-documented evidence against them.That “may well turn out to be a good thing,” said Lee Levine, a veteran First Amendment lawyer who has defended some of the biggest media outlets in the country in libel cases.The high legal bar to prove defamation had become an increasingly sore subject well before the 2020 election, mainly but not exclusively among conservatives, prompting calls to reconsider the broad legal immunity that has shielded journalists since the landmark 1964 Supreme Court decision New York Times v. Sullivan. Critics include politicians like former President Donald J. Trump and Sarah Palin, who lost a defamation suit against The Times last month and has asked for a new trial, as well as two Supreme Court justices, Clarence Thomas and Neil M. Gorsuch.Mr. Levine said a finding of liability in the cases making their way through the courts could demonstrate that the bar set by the Sullivan case did what it was supposed to: make it possible to punish the intentional or extremely reckless dissemination of false information while protecting the press from lawsuits over inadvertent errors.“If nothing else,” Mr. Levine added, “it would effectively rebut the recent contentions that the Sullivan regime doesn’t work as intended.”The Sullivan case, which legal scholars consider as seminal to the First Amendment as Brown v. Board of Education of Topeka was to civil rights, established the “actual malice” standard for defamation. It requires that a suing public figure prove a person or media outlet knew what it said was false or acted with “reckless disregard” for the high probability that it was wrong.Calls to weaken that precedent drew considerable resistance from advocates for press freedom. But many of them have come to see the threat of a defamation suit — a tactic often used by the powerful to retaliate against and mute unwelcome criticism — as an essential tool in the battle against disinformation.Increasingly, many First Amendment lawyers see the courts as one of the last viable paths to deter the spread of political disinformation and help prevent repeats of dangerous situations — from another Jan. 6-style riot to the more isolated threats against local officials that grew out of Mr. Trump’s false insistence that the election was stolen from him.“I think we are at a time in U.S. history and world history of losing any ability as a civilization to distinguish between truth and falsity,” said Rodney Smolla, a lawyer representing Dominion Voting Systems, a technology company suing Fox News and several individuals who promoted conspiracy theories about the last election, including Rudolph W. Giuliani and Sidney Powell.“And one of the few legal avenues in which civilized countries have attempted to distinguish between truth and falsity is defamation law,” said Mr. Smolla, who believes the Sullivan decision is sound law. A judge in Delaware, where the Dominion suit was filed, denied Fox’s motion to dismiss the case in December, and it is now in the discovery phase.As a defense, Fox and others invoke the First Amendment and Sullivan, arguing that their reporting on the 2020 election and its aftermath is legally indistinguishable from the kind of basic, just-the-facts journalism that news organizations have always produced. Fox has portrayed itself as a neutral observer, saying it did not endorse claims about hacked voting machines and systemic voter fraud but instead offered a platform for others to make statements that were unquestionably newsworthy.As Fox News mounts its defense in the Dominion case and in a lawsuit by another voting systems company, Smartmatic, the network’s lawyers have argued that core to the First Amendment is the ability to report on all newsworthy statements — even false ones — without having to assume responsibility for them.“The public had a right to know, and Fox had a right to cover,” its lawyers wrote. As for inviting guests who made fallacious claims and spun wild stories, the network — quoting the Sullivan decision — argued that “giving them a forum to make even groundless claims is part and parcel of the ‘uninhibited, robust and wide-open’ debate on matters of public concern.’”Last week, a federal judge ruled that the Smartmatic case against Fox could go forward, writing that at this point, “plaintiffs have pleaded facts sufficient to allow a jury to infer that Fox News acted with actual malice.”The broadness of the First Amendment has produced strange bedfellows in free speech cases. Typically, across the political spectrum there is a recognition that the cost of allowing unrestrained discourse in a free society includes getting things wrong sometimes. When a public interest group in Washington State sued Fox in 2020, alleging it “willfully and maliciously engaged in a campaign of deception and omission” about the coronavirus, many First Amendment scholars were critical on the grounds that being irresponsible is not the same as acting with actual malice. That lawsuit was dismissed.But many aren’t on Fox’s side this time. If the network prevails, some said, the argument that the actual malice standard is too onerous and needs to be reconsidered could be bolstered.“If Fox wins on these grounds, then really they will have moved the needle too far,” said George Freeman, executive director of the Media Law Resource Center and a former lawyer for The New York Times. News organizations, he added, have a responsibility when they publish something that they suspect could be false to do so neutrally and not appear to be endorsing it.Fox is arguing that its anchors did query and rebut the most outrageous allegations.Paul Clement, a lawyer defending Fox in the Smartmatic case, said one of the issues was whether requiring news outlets to treat their subjects in a skeptical way, even if their journalists doubt that someone is being truthful, was consistent with the First Amendment.“If you’re superskeptical, you’re covered, but if you express sympathy, then somehow you’re not?” Mr. Clement said. “To me, that seems fundamentally problematic and antithetical to First Amendment values.”One America News also faces a lawsuit accusing it of deliberately promoting and profiting from false claims of voter fraud. It has not yet responded to the suit.The New York TimesPerhaps the boldest in claiming that they were merely reporting on important events and so are protected by the First Amendment are Project Veritas and its founder, James O’Keefe. They are being sued for publishing and amplifying the claims of a postal worker in Erie, Pa., who implicated his boss in a plot to backdate mail-in ballots and help elect President Biden. An investigation found no evidence to support those claims.In legal briefs, lawyers for Mr. O’Keefe and Project Veritas have called their work “the stuff responsible journalism is made of” and claimed that the case would put “news-gathering itself on trial.” To bolster their argument, they cite examples of how Project Veritas worked in ways that would seem consistent with professional news reporting, including reaching out to the accused postal supervisor for comment twice. A lawyer representing Mr. O’Keefe had no comment.The lawsuit, however, paints a different picture from the “scrupulous” reporting that Project Veritas lawyers described. It recounts how, after the election, the outlet published multiple articles about someone it identified as a whistle-blower, Richard Hopkins, who came forward with accusations that the local postmaster, Robert Weisenbach, was a “Trump hater” and had ordered employees to backdate mail-in ballots to help Mr. Biden.But the lawsuit claims that Mr. Hopkins changed his recollection of events when postal inspectors questioned him, admitting that he did not know whether Mr. Weisenbach had directed anyone to backdate ballots. As for whether Mr. Weisenbach was really the “Trump hater” Mr. Hopkins made him out to be, Mr. Weisenbach said he had voted for Mr. Trump.In the complaint, Mr. Weisenbach’s lawyers argued that what Project Veritas had done “was not investigative journalism.” Rather, they said, “it was targeted character assassination” aimed at undermining public faith in democracy.“It has no place in our country,” the complaint added.Protect Democracy, a nonpartisan advocacy group representing Mr. Weisenbach, is also assisting two public employees in Georgia who were falsely accused of orchestrating voter fraud. The pair, a mother and daughter, are suing The Gateway Pundit and One America News over articles that accused them of helping fake a water main break at a Fulton County ballot counting center and then telling everyone to go home so they could add suitcases full of illegal ballots to Mr. Biden’s totals.OAN has not yet responded to the suit. Lawyers for The Gateway Pundit have denied the claims in court filings.Rachel Goodman, counsel for Protect Democracy, said this kind of litigation “makes clear that there are steep costs to recklessly or intentionally spreading fiction for political or personal profit.”“It reminds them that the speech standards that have governed the marketplace of ideas for decades apply to them, too,” Ms. Goodman added. More

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      Much of Smartmatic Case Against Fox News Can Proceed, Judge Rules

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      The $2.7 billion defamation lawsuit against Fox News by the election technology company Smartmatic can move forward, a New York judge ruled on Tuesday. But the judge tossed out Smartmatic’s defamation claims against the Fox News host Jeanine Pirro and a network guest, Sidney Powell.Smartmatic sued Rupert Murdoch’s cable news networks last year, along with several Fox hosts and guests. The lawsuit accused them of damaging the company by promoting a false narrative about the 2020 election: that Smartmatic and other voting systems companies tried to rig the race against President Donald J. Trump. Smartmatic later expanded its legal battle against disinformation to the right-wing media outlets Newsmax and One America News Network.On Tuesday, Justice David B. Cohen of State Supreme Court in Manhattan said in a 61-page ruling that, “at a minimum, Fox News turned a blind eye to a litany of outrageous claims about plaintiffs, unprecedented in the history of American elections, so inherently improbable that it evinced a reckless disregard for the truth.”He added, “At this nascent stage of the litigation, this court finds that plaintiffs have pleaded facts sufficient to allow a jury to infer that Fox News acted with actual malice.”He also declined to dismiss Smartmatic claims against Maria Bartiromo, the Fox Business star, and Lou Dobbs, whose Fox Business show was a frequent clearinghouse for baseless theories of electoral fraud in the weeks after Mr. Trump’s defeat. Fox canceled Mr. Dobbs’s program last year, one day after Smartmatic sued.Citing a legal technicality, Justice Cohen dismissed most of Smartmatic’s defamation claims against Rudolph W. Giuliani, who, appearing on Fox News as a legal representative for Mr. Trump, said the technology company had “tried-and-true methods for fixing elections,” among other false assertions. Even so, Justice Cohen said there was “substantial” evidence that Mr. Giuliani “acted with actual malice insofar as he evinced a reckless disregard for the truth” and ruled that Smartmatic could try again. The judge allowed another part of Smartmatic’s defamation case against Mr. Giuliani to go forward.Fox News vowed a swift appeal.“While we are gratified that Judge Cohen dismissed Smartmatic’s claims against Jeanine Pirro at this early stage, we still plan to appeal the ruling immediately,” the network said in a statement. The network added that it would “continue to litigate these baseless claims by filing a counterclaim for fees and costs” under New York’s anti-SLAPP (strategic lawsuit against public participation) statute, which is meant to quickly set aside lawsuits that may be intended to chill free speech.Fox News said it would do so “to prevent the full-blown assault on the First Amendment which stands in stark contrast to the highest tradition of American journalism.”In dismissing the claim against Ms. Pirro, Justice Cohen said that while she had asserted on her show that Democrats “stole votes,” she had not specifically blamed Smartmatic’s software.A spokesman for Smartmatic did not reply to a request for comment.Fox News is also battling a related $1.6 billion defamation lawsuit from Dominion Voting Systems, which has accused the channel of advancing lies that devastated its reputation and business. A Delaware judge rejected an attempt by Fox News to dismiss Dominion’s lawsuit in December. More

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      Fox News Pushes to Have Defamation Suit Against It Dismissed

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      In the months since the election tech company Smartmatic sued Fox News and three of its anchors, the two companies have engaged in a prehearing back-and-forth that continued Monday when Fox filed briefs in support of a previous motion to have the lawsuit dismissed.In its defamation suit, which was filed in New York State Supreme Court on Feb. 4, Smartmatic accused Fox and the anchors Lou Dobbs, Maria Bartiromo and Jeanine Pirro of promoting falsehoods about the company and widespread fraud in the 2020 presidential election.Shortly after the suit was filed, Fox canceled Mr. Dobbs’s program on Fox Business and filed a motion for a dismissal of the suit, arguing that the claims of electoral fraud broadcast on Fox News and Fox Business were newsworthy and handled fairly. Smartmatic replied on April 12, with a brief stating that the three Fox anchors had played along as their guests promoted election-related conspiracy theories.In its latest volley, Fox asserted that its coverage of Smartmatic was part of its overall reporting on a challenge of the election outcome based on claims made by former President Donald J. Trump.“Smartmatic asks this court to become the first in history to hold the press liable for reporting allegations made by a sitting president and his lawyers, and to break that barrier in the context of one of the most newsworthy events imaginable: a contested presidential election,” Fox said in its filing on Monday. “This court should decline that First-Amendment-defying request.”Representatives for Smartmatic declined to comment.Smartmatic has argued that the Fox hosts knew the on-air statements about the company were not accurate. If a court determines that Smartmatic is a public figure, Smartmatic’s lawyers will have to show that Fox acted with “actual malice” in its treatment of the company.The Fox briefs filed on Monday argued that Smartmatic, which is seeking $2.7 billion in damages, had not demonstrated that its channels or its anchors acted with malice, showing only that the three Fox hosts had not investigated the claims made on their programs.The Fox brief said that Smartmatic’s “allegations largely boil down to accusations of mere ‘failure to investigate.’”It added, “Seeking to compensate for the weakness of its allegations, Smartmatic emphasizes their volume. But a stack of inadequate allegations is still inadequate.”The briefs filed by Fox on Monday are likely to be the last in its case against Smartmatic before a court considers the matter. A hearing date has not been scheduled.Another election technology company, Dominion Voting Systems, sued Fox for defamation in March. Fox called that suit “baseless” and pledged to fight it in court. More

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      Smartmatic says disinformation on Fox News about the election was ‘no accident.’

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      The election technology company Smartmatic pushed back on Monday against Fox News’s argument that it had covered the aftermath of the 2020 presidential election responsibly, stating that Fox anchors had played along as guests pushed election-related conspiracy theories.“The First Amendment does not provide the Fox defendants a get-out-of-jail-free card,” Smartmatic’s lawyer, J. Erik Connolly, wrote in a brief filed in New York State Supreme Court. “The Fox defendants do not get a do-over with their reporting now that they have been sued.”The brief came in response to motions filed by Fox Corporation and three current and former Fox hosts — Maria Bartiromo, Jeanine Pirro and Lou Dobbs — to dismiss a Smartmatic lawsuit accusing them of defamation.Smartmatic and another company, Dominion Voting Systems, became the focus of baseless conspiracy theories after the Nov. 4 election that they had manipulated vote totals in contested states. Those conspiracy theories were pushed by Rudolph W. Giuliani and Sidney Powell, serving as personal lawyers to former President Donald J. Trump, on Fox News, Mr. Trump’s longtime network of choice. Smartmatic, which says that the conspiracy theories destroyed its reputation and its business, provided election technology in only one county during the election.Last month, Dominion also sued Fox News. Together, the two suits represent a billion-dollar challenge to the Fox empire, which, after Smartmatic filed its lawsuit, canceled the Fox Business program hosted by Mr. Dobbs.“The filing only confirms our view that the suit is meritless and Fox News covered the election in the highest tradition of the First Amendment,” the network said in a statement late Monday.Fox’s motion, as well as those of its anchors, argued that the mentions of Smartmatic were part of its reporting on a newsworthy event that it was duty-bound to cover: A president’s refusal to concede an election and his insistence that his opponent’s victory was not legitimate.But the response Smartmatic filed on Monday, which runs for 120 pages, said that argument amounted to wishful thinking and that Fox had not covered the claims about Smartmatic objectively or fairly.“The Fox defendants wedded themselves to Giuliani and Powell during their programs,” the brief said. “They cannot distance themselves now.”Fox will have several weeks to respond to the brief, and a judge will eventually consider whether to allow Smartmatic’s case to proceed. More