Fox News sued by Dominion in $1.6 billion defamation case that could set new guardrails for broadcasters

In the lawsuit, Dominion argued that Fox and several of its on-air personalities elevated baseless claims about the voting company rigging the 2020 election and allowed falsehoods by their guests to go unchecked, including a wild claim that the company’s machines were manufactured in “Venezuela to rig elections for the dictator Hugo Chávez” and that Dominion’s algorithm manipulated votes so that then-President Trump would lose.

“Fox engaged in this knowing and reckless propagation of these enormous falsehoods in order to profit off these lies,” reads the lawsuit. “Fox wanted to continue to protect its broadcast ratings, catering to an audience deeply loyal to President Trump.”

Dominion filed the lawsuit in Delaware, where both Dominion and Fox are incorporated.

Smartmatic, another voting-technology company, filed a $2.7 billion lawsuit in February against Fox News and several of its most prominent commentators over what Smartmatic chief executive Antonio Mugica called a “disinformation campaign” about the presidential election.

Fox, which has filed four motions to dismiss the Smartmatic lawsuit, said in response to the Dominion lawsuit that it “is proud of our 2020 election coverage, which stands in the highest tradition of American journalism” and that it would “vigorously defend against this baseless lawsuit in court.”

Dominion attorney Stephen Shackelford said that Fox “took a small flame and turned it into a raging fire” by amplifying false statements about the election and Dominion and that the media company did so with “reckless disregard” for the truth — alluding to the high legal standard that the courts have maintained for prominent figures suing for defamation.

“If this case doesn’t rise to the level of defamation by a broadcaster, then nothing does,” Shackelford said.

Dominion, which has requested a jury trial, may file further suits against the Fox personalities who pushed the disputed election framing, such as Lou Dobbs and Maria Bartiromo, but chose to first focus on Fox. “Ultimately,” Shackelford said, “the buck stops with Fox.”

The lawsuit cites Fox’s own reporting in advance of Election Day that the mail-in vote would heavily favor Joe Biden and that it was likely that the result wouldn’t be known for days.

But Dominion lawyers argue that Fox News ratings went into “in a freefall” in the days after the election and that the network was losing Trump loyalists to more right-wing channels, such as Newsmax, that were even more aggressive in pushing claims of fraud.

Dominion alleges in its lawsuit that Fox repeated false claims about Dominion’s role in the election as a defensive strategy — specifically as a way to keep it from losing viewers to rival networks on the right. It noted that Trump and his supporters were upset with Fox for calling Arizona for Biden on the night of the election.

“Viewers began fleeing Fox in favor of media outlets endorsing the lie that massive fraud caused President Trump to lose the election,” the company argued in its legal complaint. “They saw Fox as insufficiently supportive of President Trump. … So Fox set out to lure viewers [by] intentionally and falsely blaming Dominion for President Trump’s loss by rigging the election.”

Around the same time, Powell and Giuliani appeared on several conservative and right-wing media outlets, where they repeated Trump’s false claim that the election had been stolen from him. Hosts such as Bartiromo and Dobbs not only had Powell and Giuliani on as guests, but “endorsed and repeated” their lies.

Dominion repeatedly notified the network that it had aired falsehoods, including sending several “setting the record straight” emails to Fox News reporters and producers, but was ignored, the complaint alleges.

As a result of Fox’s conduct, Dominion employees ranging from software engineers to its chief executive have been threatened and the company suffered reputational damage that has diminished its value, Dominion’s lawyers said Friday. The company also stands to lose $600 million over eight years in profits, as officials states and localities have reevaluated their contracts with the company, the lawyers added.

Legal experts said the lawsuits against Fox News raise important questions about defamation, freedom of the press and disinformation.

“We are seeing the way that libel has become a real battleground in the fight against disinformation,” said RonNell Andersen Jones, a law professor at the University of Utah. “The threat of massive damages for spreading probably false conspiracy theories on matters of public concern could turn out to be the one tool that is successful in disincentivizing that behavior, where so many other tools seem to have failed.”

The suits could also cause broadcasters “to be more cautious or ask tougher questions of its sources or even make disclaimers on air” as it considers how to handle or disseminate questionable information, said Syracuse University law professor Roy Gutterman.

“Like the other lawsuits, what constitutes truth and lies in a heated political discussion is at the heart of the matter,” he said. “But so is how a broadcaster … addresses these types of issues.”

But Dominion may face an uphill legal battle, because defamation law gives broad protection to publishers, and cases such as this are “hard to win,” Andersen Jones added. If Fox can successfully argue to the court that Dominion has enough prominence to qualify as a “public” figure, then Dominion would face the higher standard of having to prove that Fox acted with “reckless disregard” of the facts — meaning it knowingly lied or ignored evidence to the contrary.

The “reckless disregard” standard for public-figure plaintiffs is “rarely met,” said Andersen Jones. “It is famously difficult to show that someone knowingly lied, although Dominion has marshalled some powerful evidence on this front.”

After Smartmatic and Dominion signaled in December that they were weighing legal action against the network, Fox aired a short segment on several shows that attempted to debunk the misinformation. In late November, Fox also had news anchor Eric Shawn interview a Dominion spokesman, who denied the company had ties to Venezuela.

The Smartmatic lawsuit also named several Fox hosts, including Bartiromo, Dobbs and Jeanine Pirro. Fox has said the lawsuit is an attempt to “stifle debate and chill vital First Amendment activities.”

Dominion’s lawyers on Friday dismissed concerns that such legal actions represent a threat to press protections. “What Fox did here was not reporting. It was not a political debate,” Shackelford said. “The First Amendment guarantees a free press, not a consequence free press. The Constitution does not give publishers license to defame.”

Dominion lawyer Tom Clare also cited an argument that Powell made this week to a judge, in which she maintained that “no reasonable person” would have believed her comments about an international conspiracy to steal the election from Trump were “statements of fact.”

“That argument is ridiculous on so many levels,” Clare said, noting Fox repeatedly had Powell on air. In one appearance, she “looked straight into that Fox News camera and told Lou Dobbs, ‘You would have to be a damn fool and abjectly stupid not to see what happened here,'” Clare said.

This story, originally published at 8:10 a.m., has been updated.

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