With dueling motions for summary judgment pending and a trial looming, lawyers watching the fight expect it to end in a draw as the network weighs 'how much risk they want to take and how much money they have on hand.'
The legal battle began in March 2021 when Dominion sued Fox News for $1.6 billion. The company claims the cable channel knowingly amplified “radioactive falsehoods” about election fraud made by Donald Trump and his supporters because it was worried about losing its audience to Newsmax and OAN.
In order to succeed on its defamation claim, Dominion would need to prove actual malice — meaning that Fox either knew the statements to be false or acted with reckless disregard for the truth. The standard was established in 1964 in. Knight First Amendment Institute Senior Counsel Katie Fallow says the elevated requirement “ensures free speech and the ability of the media to report on public officials and figures without the fear of lawsuits based on a mere mistake.
“This appears to be a relatively unusual case where Dominion has presented a remarkable array of statements by Fox’s own executives, on air hosts and producers showing that the knew the claims were false but they continued to air them because they knew they would lose their audience,” says Fallow. “There is some merit to that in the abstract,” says Fallow. “It is newsworthy that they’re making these false claims, but there is a difference between reporting on that and essentially acting as a mouthpiece for the false statement.”
Media law specialist Daniel Novack isn’t so sure. “As a media lawyer, I’m worried about the neutral report privilege getting stomped on,” he says, pointing to an adage that bad facts create bad law. “It’s extremely irritating to watch Fox cloak itself in neutral reportage and First Amendment protections when this has the potential to destroy those protections because the facts are so bad.”
“Most civil cases between two corporations end up settling before trial,” says Caplan. “Most corporations would rather know for sure it’s going to be X dollars than take the risk that it might be $1.6 billion. It’s a business judgment about how much risk they want to take and how much money they have on hand.”
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