In the months since the 2020 US presidential election, right-wing television news in America has been a wild west, an apparently lawless free-for-all, where conspiracy theories about voting machines, ballot suitcases and dead Venezuelan leaders have been repeated to viewers around the clock.
There didn’t seem to be much consequence for airing the most outrageous ideas in prime time.
But now, unfortunately for Fox News, One America News Network (OAN) and Newsmax, it turns out that this brave new world wasn’t free of legal jurisdiction — with the three networks now facing billion-dollar lawsuits as a result of their baseless accusations.
In June, Dominion Voting Systems, which has provided voting machines to 28 states, was given the go-ahead to sue Fox Corp, the parent company of Fox News, in a case that could thrust Rupert Murdoch and his son Lachlan into the spotlight.
In the $1.6 billion lawsuit, Dominion accuses Fox Corp, and Murdoch in particular, of allowing Fox News to spread false claims that the polling company rigged the election for Joe Biden.
Fox Corp tried to dismiss the case, but a Delaware judge said Dominion had shown adequate evidence to proceed with the case. Dominion is already suing Fox News, as well as OAN and Newsmax.
“These allegations support a reasonable inference that Rupert and Lachlan Murdoch either knew that Dominion did not rig the election, or at the very least had a reckless disregard for the truth when they allegedly caused Fox News to spread their allegations about Dominion,” it said Judge Eric Davis.
Davis’ ruling is no guarantee that Fox will be found liable. But the judge made it clear that this was not some frivolous attempt by Dominion – and media and legal experts believe that Fox could be in serious trouble.
“Dominion has a very strong case against Fox News — and against OAN for that matter,” said Ciara Torres-Spelliscy, a professor who teaches constitutional law at Stetson University and a fellow at the Brennan Center for Justice, a nonpartisan law and policy institute.
“The reason Dominion is suing is because Fox and other right-wing news outlets have repeated vicious lies that Dominion’s voting machines stole the 2020 election from Trump to Biden. But all those conspiracy theories about the Dominion machines were pure bullshit, and Fox as a news organization should have known that and not megaphoned that aspect of the big lie.
“What’s particularly bad about Fox is [that] Dominion asked them to stop and correct the recording in real time, and Fox continued to spread false claims about the voting machine company.
Indeed, in his ruling, Davis noted that “other newspapers controlled by Rupert Murdoch, including the Wall Street Journal and the New York Post, condemned President Trump’s claims and called on him to concede defeat.”
In a statement, a Fox News spokesperson said: “Limiting the press’ ability to report freely on America’s election process is in stark contrast to the freedoms on which this nation was founded, and we are confident that we will prevail in this case because the first amendment is at the heart of our democracy and freedom of the press must be protected.
A potential precedent for Dominion v. Fox can be found in a recent case involving Sarah Palin suing the New York Times. Palin claims the newspaper maliciously damaged her reputation by falsely linking her campaign rhetoric to a mass shooting. In February, a jury sided with the Times, finding that a Times employee did not act with “actual malice” against a public figure or with “reckless disregard” for the truth — the criteria needed to prove defamation.
But the Times’ victory shouldn’t give Fox too much hope, Torres-Spelliscy said.
“In the case of Palin, the New York Times quickly corrected the error about Palin, which was added while an article was being edited,” Torres-Spellisi said.
“In contrast, Fox News perpetuated the bad behavior and repeatedly told myths about Dominion’s voting machines.” This is probably why the judges in several of these Dominion libel cases have not dismissed them.
Dominion isn’t the only company seeking redress from Fox and its contemporaries.
Smartmatic, an election software company that provided voting software to exactly one district in the 2020 election, but found itself the target of allegations that it was founded “with the specific purpose of manipulating elections” by associates of Hugo Chavez, former president of Venezuela, who died in 2013, is suing Fox Corp, Fox News and affiliates for $2.7 billion.
Still, Fox News is the most-watched and arguably the most influential cable news channel in the US, and it’s probably too big to fail.
But that’s not the case with the smaller right-wing networks OAN and Newsmax, which are also being sued by Dominion and Smartmatic — in June, a Delaware judge denied Newsmax’s motion to dismiss the Dominion case, but did not rule on whether Newsmax was innocent or guilty.
“I think the OAN will be stripped of legal costs. Forget all judgments,” said Angelo Carusone, president and CEO of Media Matters for America, a right-wing media watchdog.
Carusone pointed out that OAN is already struggling to survive after being dumped in April by cable company DirecTV – which is reportedly responsible for 90% of OAN’s revenue.
“We’ve already started to see them cutting programs, cutting staff, cutting the number of programs. So it’s quite clear that they don’t have enough resources to withstand a long trial.
Newsmax, which is still supported by DirecTV, is “relatively cash-flush” compared to OAN, Caruson said — enough to survive a trial if not pay the billions of dollars Dominion and Smartmatic are seeking.
The Newsmax booth at the NRA convention in Houston in May. Photo: Patrick T Fallon/AFP/Getty Images
In a statement, Newsmax said it had “reported allegations made by President Trump and his surrogates, and at no time did we report that those allegations were true. We also reported on critics of Trump’s claims.”
He added: “Dominion’s lawsuit is an assault on a free press and threatens all media if it prevails.”
OAN did not respond to a request for comment.
As for Fox, the most important thing could be if the Murdochs are subject to discovery — where they and Fox could be forced to turn over documents potentially including communications data — as part of the lawsuit, Caruson said.
Text messages obtained by the committee since Jan. 6 have already revealed that there was communication between Fox News anchors and White House officials about the riot — and it seems unlikely that was the only thing that was discussed.
“I think once you start pulling out the discovery material, what you’re going to find is that there was a lot of communication between Trump’s people both internally and externally about pushing very specific lies and narratives,” Caruson said.
Although Fox is more comfortable financially than OAN and NewsMax, it is not invulnerable. Fox News must renegotiate its contracts with cable providers later this year, and Caruso said the cable companies could use the lawsuit to lower prices.
The Dominion and Smartmatic cases are likely to drag on for some time, and it remains to be seen how Fox News, OAN and NewsMax will react.
As for the conspiratorial allegations of election fraud by news channels, at least that’s one thing that’s already been settled.
Courts, the Department of Justice, election officials have investigated and dismissed the allegations, as has the US Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency.
“The November 3 election was the safest in American history,” the agency said in a 2020 statement.
“While we know there are many unsubstantiated claims and opportunities for misinformation about our election process, we can assure you that we have the utmost confidence in the security and integrity of our election, and you should too.”
William Barr, Trump’s attorney general, put it in far less sophisticated terms.
Allegations of election interference, Barr told the Jan. 6 committee, were “nonsense.”
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