(CNN) — Dominion lawyers on Tuesday claimed that Fox Corporation chairman Rupert and his son, CEO Lachlan Murdoch, gave implicit but clear instructions to Fox News after the 2020 election to “shut down the talk of fact-checking” and “let the hosts run wild” with election conspiracies.
“They made the decision to let it happen,” Dominion lawyer Justin Nelson said, referring to the string of baseless claims of vote-rigging and election irregularities that were spread on Fox News in late 2020.
“There is an obligation to stop it once he is made aware of it,” Nelson added.
The voting machine company is asking a judge to order the 92-year-old chairman and his son to testify after private messages uncovered in the case showed network executives knew some of Fox News’ top hosts were promoting election lies to its audience. Fox News and its parent company, Fox Corporation, are resisting these efforts, which also include an attempt to compel testimony from Fox Corporation chief legal officer Viet Dinh and board member Paul Ryan, the former House speaker.
Dominion is suing Fox News over the right-wing channel’s airing of false claims of election fraud around the 2020 presidential election. Dominion has alleged in its lawsuit that during the 2020 election the right-wing network “recklessly disregarded the truth” and pushed various pro-Trump conspiracy theories about the election technology company because “the lies were good for Fox’s business.” Fox News has strongly disputed Dominion’s allegations.
The lawsuit is one of two separate cases brought by voting technology companies against Fox News that collectively seek $4.3 billion in damages, posing a serious threat to the highly profitable arm of Rupert Murdoch’s media empire.
“Although Dominion seeks to compel Rupert Murdoch, Lachlan Murdoch, Viet Dinh, and Paul Ryan, the Court should decline to compel their appearance at trial due to the hardships on those witnesses, and the undue burden given their limited knowledge of pertinent facts,” the Fox parties wrote in a filing Monday.
Fox News argued that Dominion should instead rely on the “lengthy depositions” that these witnesses already gave.
“Compelling live testimony at trial will add nothing other than media interest. But this is a trial, not a public relations campaign,” lawyers for the right-wing network wrote.
There is a hearing Tuesday on summary judgments in Delaware Superior Court after both Dominion Voting Systems and Fox News asked the judge overseeing the closely watched defamation case to essentially declare their side the winner of the lawsuit and avert a trial.
Dominion is arguing that it has already proven “actual malice.” It claims internal Fox emails and texts uncovered in the case demonstrate that Fox personalities and executives knew that they were promoting false claims about Dominion rigging the 2020 election, and therefore, they were defamed.
Fox News is arguing that it is fully protected by the First Amendment. It claims Dominion hasn’t shown anything strong enough to overcome the high bar that the First Amendment provides, protecting good-faith journalists from speech-chilling defamation lawsuits.
Delaware Superior Court Judge Eric Davis said Tuesday that he’s keeping an open mind as he considers whether to decide the case before it goes to trial.
“I have not made a decision. I have not pre-decided this,” Davis said at the start of a major hearing in Wilmington, Delaware.
Davis told both sides that “I need to be educated” on their arguments for summary judgment, the primary purpose of Tuesday’s hearing. Dominion and Fox have filed motions seeking summary judgment, asking the judge to declare them the winner of the lawsuit without the need of a trial.
“Everybody is going to get an opportunity to speak,” Davis said. “I’m not the Supreme Court, so I don’t have a clock up here, and I’m not going to cut you off… This is stressful enough. Don’t be stressed that I’ll cut you off on a time basis.”
Dominion lawyer Rodney Smolla said its high-stakes defamation case against Fox News will protect the public discourse and hold accountable people who deliberately lied about the 2020 election.
This case is about “protecting the integrity of our public discourse itself,” Smolla said.
He added that a well-founded defamation lawsuit “protects the public from deliberate falsehoods.”
He made these comments while citing previous court rulings in other First Amendment cases, where judges concluded that these concerns for the public weighed in favor of holding defamers accountable.
Tuesday’s hearing comes one day after a Fox News producer filed a pair of explosive lawsuits against the right-wing talk channel, alleging that the network’s lawyers coerced her into providing misleading testimony in Dominion Voting Systems’ $1.6 billion defamation case against the company.
The lawsuits filed by Abby Grossberg, who worked as a senior booking producer for Maria Bartiromo and most recently head of booking for Tucker Carlson, accused Fox’s legal team of having engaged in wrongful conduct as it prepared her for a pre-trial deposition in the election technology company’s case.
Chaos behind the scenes
The court filings have offered the most vivid picture to date of the chaos that transpired behind the scenes at Fox News after Trump lost the election. and Viewers rebelled against the right-wing channel for accurately calling the contest in Biden’s favor, and court comments show Fox News promoted election conspiracy theories to improve its financial situation. The filings unearthed a trove of communications between network executives and its most popular hosts, revealing that the right-wing talk channel, was willing to lie to its viewers.
In one particularly damaging admission revealed in the case last month, Murdoch, the chairman of Fox Corporation, acknowledged that several Fox News hosts endorsed false claims that the 2020 election was stolen.
“They endorsed,” Murdoch said, referring to Fox hosts Sean Hannity, Jeanine Pirro, Maria Bartiromo, and former host Lou Dobbs.
“Some of our commentators were endorsing it,” he said, when asked about the talk hosts’ on-air positions about the election. “I would have liked us to be stronger in denouncing it, in hindsight,” he added.
In his deposition, Murdoch also acknowledged that it was “wrong” for Tucker Carlson to have hosted election conspiracy theorist Mike Lindell on his program following the presidential election.
Fox News staffers knew MyPillow CEO Mike Lindell was “crazy” but let him spread false claims about the 2020 election on their shows because he was one of their top advertisers, a Dominion lawyer said Tuesday.
“They were putting Lindell on air for business purposes,” Dominion lawyer Nelson said at a major hearing Tuesday in Wilmington, Delaware. “They knew Lindell was crazy but they also knew he was their highest advertiser, and they were trying to assuage him.”
Lindell is a top advertiser for Fox News, running many commercials for his pillow company. He also is one of the most notorious promoters of baseless and unhinged conspiracy theories about the 2020 election, international vote-rigging schemes, and the so-called “deep state.”
In another filing made public last month, messages exchanged among Fox News’ most prominent stars — Tucker Carlson, Sean Hannity, and Laura Ingraham — showed they had privately ridiculed claims of election fraud in the 2020 election, despite the network giving significant airtime to the bogus claims.
In one set of messages, Carlson texted Ingraham, saying that Sidney Powell, an attorney who was representing the Trump campaign, was “lying” and that he had “caught her” doing so. Ingraham responded, “Sidney is a complete nut. No one will work with her. Ditto with Rudy [Giuliani].”
Fox has defended the actions of its executives and hosts in its own legal filings countering Dominion’s lawsuit, alleging that its hosts’ on-air assertions about election fraud were taken out of context.
“Dominion’s summary judgment motion is flawed from top to bottom and should be rejected in its entirety,” lawyers for Fox News wrote in a filing last month.
And Fox Corporation, the parent company of Fox News, alleged Dominion “has produced zero evidentiary support for its dubious theory that high-level executives at Fox Corporation ‘chose to publish and broadcast’ or played a ‘direct role in the creation and publication’ of false election lies.”
While the First Amendment sets a high bar for defamation cases brought against media outlets, a protection that was reinforced in the landmark 1964 Supreme Court case New York Times v. Sullivan, legal experts told CNN that Dominion’s case appeared unusually strong.
“It’s a major blow,” renowned First Amendment attorney Floyd Abrams said of Dominion’s evidence presented last month, adding that the “recent revelations certainly put Fox in a more precarious situation” in defending against the lawsuit on First Amendment grounds.
Rebecca Tushnet, the Frank Stanton Professor of First Amendment Law at Harvard Law School, described Dominion’s evidence as a “very strong” case that “clearly lays out the difference between what Fox was saying publicly and what top people at Fox were privately admitting.”
Tushnet said that in her years of practicing and teaching law, she had never seen such damning evidence collected in the pre-trial phase of a defamation suit.
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