With each new revelation from filings in the $1.6 billion defamation suit against Fox News, the dimensions of the hole the network is in become clearer.
It’s deep.
In more typical defamation cases, the plaintiff’s beef is with a negligent or unscrupulous reporter or editor, or perhaps a flawed system of fact-checking or other guardrails. Dominion Voting Systems’ case against Fox is unique in that the evidence increasingly depicts a thoroughly corrupt organization undertaking a systematic effort to spread lies and influence elections.
The latest motions from Dominion capture Fox Chairman Rupert Murdoch and star host Tucker Carlson, among others, disparaging Donald Trump. As it turns out, their actual view of the president they tirelessly championed is that he is a destructive lunatic.
Carlson was blunt, texting at one point, “I hate him passionately.” Of Trump’s presidency, he said, “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. But come on. There really isn’t an upside to Trump.”
There really isn’t — that is, except cynically selling him to millions of listeners and raking in the profits.
Murdoch wrote during the aftermath of the 2020 election that Trump appeared “increasingly mad.” Elsewhere, Fox figures characterized the big lie that Trump won reelection — which their network was actively propagating — as “mind-blowingly nuts,” “totally off the rails,” and “completely BS.”
This week’s Dominion filing exposes Fox in other ways. It reveals the leading cable network as a den of vicious infighting and backbiting, especially between the celebrity prime-time hosts and the ostensibly objective news division. And it reveals unabashed rooting for the Republican cause, with cheerleading for GOP candidates for offices beyond the presidency. Murdoch copped to this in a deposition, conceding, “We were worried that Mr. Trump would lose the election.”
In response to the reams of damning words from the mouths, phones and keyboards of its players, Fox responds that Dominion is cherry-picking quotes and distorting the record. There are two problems with that argument.
First, defamation is determined statement by statement. If a media organization knowingly and falsely maligns a public figure, the fact that it reported nice and true things elsewhere is no defense.
Moreover, the statements Dominion has highlighted are hardly nuanced or ambiguous. No amount of context can deprive characterizations such as “mind-blowingly nuts” and “completely BS” of their essential meaning.
The Dominion suit, which is scheduled to go to trial next month in Delaware, is shaping up as arguably the most important case against a big media defendant since 1964’s New York Times v. Sullivan, the landmark press freedom case setting a high standard for defamation of public figures.
In a sense, the integrity and boundaries of the media themselves are on the line. If Fox escapes liability for this level of knowingly deceptive defamation, it will be an indictment of the stringent standard the Supreme Court erected in Sullivan, with the goal of giving the media breathing room to pursue truthful coverage of matters of public interest.
The problems that Dominion is exposing run far deeper than defamation law. More than just deceptive, Fox is complicit in the severe challenges to the rule of law and democratic norms that we have been wrestling with ever since Trump came on the scene.
Fox’s lies are tendentious; their goal, as with Trump and a long line of fascists and autocrats, is to inflame the grievances and prejudices of voters who feel left behind. But nothing in the policies that Fox and the MAGA right promote — to the extent they even promote policies — is designed to lift up these voters. Their deliberate deception of their viewers reveals their fundamental disregard and contempt for them.
And even as Fox stares in the face of an enormous adverse verdict, the network remains at least somewhat unrepentant. It’s beyond farcical that just this week, Carlson re-upped the big lie, calling the Jan. 6, 2021, insurrectionists “sightseers” and the 2020 election “a grave betrayal of American democracy.”
Dominion’s request for compensation for the knowing damage that Fox inflicted is righteous. But it wouldn’t nearly suffice to right the grave social wrongs that the company has intentionally inflicted for ratings and profits. The hunger for accountability for the abuses and outrages to democracy that culminated on Jan. 6 extends beyond Trump and his circle to his enablers at Fox.
Harry Litman is the host of the “Talking Feds” podcast. @harrylitman.