Will Dominion Dominate Fox?

• Jurisdiction: United States,Federal
• Law Firm: Greenberg Glusker Fields Claman & Machtinger
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Libel & Defamation
• Author: Mr Douglas E. Mirell
• Published date: 09 May 2023

With opening statements scheduled to begin tomorrow, Dominion Voting Systems v. Fox has already become the highest profile public-figure defamation case since the U.S. Supreme Court first defined the judicial landscape for such lawsuits in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The forthcoming trial will determine whether Fox News Network (FNN) and its parent entity, Fox Corporation (FC), are to be held liable for providing a platform for guests that FNN's hosts knew would make false and defamatory on-air statements about how Dominion's voting machines helped "steal" the 2020 presidential election from former President Donald J. Trump, and whether those hosts themselves "affirmed, endorsed, repeated, and agreed with those false statements."

In his 130-page summary judgment ruling, Delaware Superior Court Judge Eric M. Davis has already determined that the 20 statements at issue are in fact false. "The evidence developed in this civil proceeding demonstrates that [it] is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true. [Italicization, boldfacing and capitalization in original.]" US Dominion, Inc. v. Fox News Network, LLC, and Fox Corporation, Case Nos. N21C-03-257 EMD and N21C-11-082 EMD, Order dated March 31, 2023.

In that same ruling, Judge Davis rejected Fox's claim that these statements were protected by an asserted "neutral report" privilege which New York courts had previously refused to recognize and whose decisions were binding in this case. See Freidman v. Buzzfeed, Inc., 2018 WL 2100452, *4-5 (N.Y.Sup. May 7, 2018), citing Hogan v. Herald Co., 84 A.D.2d 470, 446 N.Y.S.2d 836 (4th Dept. 1982). The court also rebuffed Fox's argument that the statements about Dominion were immunized by the "fair report" privilege embodied in Section 74 of the New York Civil Rights Law. Akin to California Civil Code Section 47(d), the New York law applies only to substantially accurate reports about "proceedings"; in this case, "most of the contested statements were made before any lawsuit had been filed in a court" and only one statement from a Nov. 30, 2020, Lou Dobbs Tonight broadcast even referenced any official proceedings.

Finally, Judge Davis likewise spurned Fox's argument that the vote-count manipulation allegations that Fox aired about Dominion's voting machines were non-actionable opinion, concluding instead that they were defamatory per se since they "strike at the basic integrity of its...