Judge Scorches Fox News’ Claim Their Dominion Coverage Was Protected Opinion, Sending Media Case of the Century to Trial

AP Photo/Mark Lennihan, File

A judge just dealt a devastating blow to the Fox media empire in the defamation case filed by Dominion Voting Systems, denying Fox’s motions for summary judgment in their entirety, and issuing a partial summary judgment in Dominion’s favor that gives them a “W” for key elements needed to prove their legal claims and allowing their $1.6 billion case to proceed to trial.

The lawsuit filed by Dominion accuses Fox News of airing false claims about Dominion’s voting machines related to former President Donald Trump’s baseless claims of fraud in the 2020 election. Pre-trial discovery in the litigation has revealed a trove of documents in which Fox’s on-air personalities and top executives exchanged emails and text messages acknowledging Trump had lost the 2020 presidential election, that his claims the election was stolen from him via fraud were unfounded, and lamenting the Jan. 6, 2021 attack on the U.S. Capitol. A new trove of documents with previously redacted comments was released Friday.

Delaware Superior Court Judge Eric M. Davis issued his ruling Friday afternoon on three motions for summary judgment, a legal procedure under which a court can rule on legal claims before trial. A judge can, if the law and facts support it, throw out a case entirely or grant a win to the plaintiff. Here, Davis rejected Fox’s attempts to end the case and granted a partial win to Dominion.

The two summary judgment motions filed by Fox News Network, LLC and its parent corporation Fox Corporation argued the statements made on-air were protected under the First Amendment, that Dominion had failed to show the statements were made with actual malice, and that Dominion had failed to prove damages.

Dominion’s motion for summary judgment sought judgment on the issue of Fox’s liability, arguing that Fox “gave life to a manufactured storyline” about Dominion rigging the election for Joe Biden when they “endorsed, repeated, and broadcast a series of verifiably false yet devastating lies about Dominion.” Dominion specifically listed twenty “Statements” made by Fox — specific comments that were made on air on the Fox News Channel or on the Fox Business Channel — that it argued constituted defamation.

For each of these twenty Statements, Judge Davis found twenty times “The Statement Asserts a Fact,” rejecting Fox’s arguments the statements were taken out of context or were protected opinion, repeatedly writing in his ruling variations of this:

When viewed in the full context of the overall communication expressed during the segment, a reasonable viewer would understand that [the Fox News on-air personalities] are asserting facts regarding Dominion, not an opinion.

As such, the Court finds that the Statement asserts facts and therefore not protected under the opinion privilege.

Worse for Fox, Judge Davis did not just find that the twenty Statements were fact, but that Dominion had established that they were false…

While the Court must view the record in the light most favorable to Fox, the record does not show a genuine issue of material fact as to falsity. Through its extensive proof, Dominion has met its burden of showing there is no genuine issue of material fact as to falsity. Fox therefore had the burden to show an issue of material fact existed in turn. Fox failed to meet its burden. 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. Therefore, the Court will grant summary judgment in favor of Dominion on the element of falsity. [Emphasis in original.]

…and defamation per se:

As discussed above, the Statements are defamatory per se because the Statements claimed that Dominion committed election fraud; manipulated vote counts through its software and algorithms; is founded in Venezuela to rig elections for dictator Hugo Chavez; and paid kickbacks to government officials who used the machines in the Election. Dominion contends that the Statements strike at the basic integrity of its business. That alone makes the Statements defamatory per se. The Statements also seem to charge Dominion with the serious crime of election fraud. Accusations of criminal activity, even in the form of opinion, are not constitutionally protected.

Judge Davis rejected in total Fox’s summary judgment motions, sending the case to trial to determine the matters unresolved in the Dominion summary judgment motions.

Perhaps most devastating for Rupert Murdoch’s media empire, the judge rejected Fox’s efforts to limit damages, meaning that at this point, if the case does not settle, a jury could evaluate the case and smack Fox with a verdict of over $1 billion in damages.

The key part of what remains for a jury to decide is whether or not Fox News and Fox Corp. acted with actual malice and if Dominion occurred damages (and if so, how much).

A spokesperson for Dominion provided Mediaite with the following statement: “We are gratified by the Court’s thorough ruling soundly rejecting all of Fox’s arguments and defenses, and finding as a matter of law that their statements about Dominion are false. We look forward to going to trial.”

A spokesperson for Fox News provided Mediaite with the following statement: “This case is and always has been about the First Amendment protections of the media’s absolute right to cover the news. FOX will continue to fiercely advocate for the rights of free speech and a free press as we move into the next phase of these proceedings.”

Read Judge Davis’ full opinion here.

This is a breaking news story and may be updated.

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