At the end of March, Colorado legislators killed five bills introduced by Republican lawmakers aiming to bolster election audits and restrict voter access. All five stemmed from a nationwide conversation that began right after the November election, as rumors of election fraud exploded on social media and in the mainstream media.
Many of those rumors focused on Denver-based Dominion Voting Systems, which provides services for much of the country, including more than sixty Colorado counties. Almost six months later, as legislators across the country are dealing with the fallout from those rumors, so is Dominion, which filed a $1,600,000,000 defamation lawsuit against Fox News Media on March 26.
In that suit, Dominion alleges not only that Fox News spread disinformation about the company, but that it did so on purpose, knowingly spreading falsehoods to appease President Donald Trump and boost the network's ratings. But in a statement responding to the filing, Fox says that it is "proud of our 2020 election coverage, which stands in the highest tradition of American journalism, and will vigorously defend against this baseless lawsuit in court."
Last November, Dominion became the subject of prolific rumors that its voting and tabulating equipment, used in 28 states during the 2020 election, was rigged to flip votes from Trump to Joe Biden. The company denied it, and no persuasive evidence of such fraud has emerged. At the same time, judges have been throwing cases claiming election fraud out of court.
Other rumors suggest that Dominion was owned by its rival, Smartmatic, and that the company's owners had rigged the 2004 Venezuelan election to ensure that Hugo Chávez was not recalled by voters. Smartmatic and Dominion each owned another company, Sequoia, in the past, but Smartmatic does not own Dominion; and although Smartmatic’s owners were definitely the subject of scrutiny after the company provided the hardware for Venezuela’s recall election, which Chávez won, an audit found no evidence of fraud.
Dominion's lawsuit points to instances when these Smartmatic- and Venezuela-related claims, as well as other rumors, were aired on Fox programs — typically during interviews with Trump lawyer Rudy Giuliani and former Trump lawyer Sidney Powell, both of whom have already been sued by Dominion. (So has My Pillow founder Mike Lindell, and many others.) The suit against Fox lists dozens of instances in which the two attorneys claimed to have proof that Dominion machines had been part of widespread election fraud...only for both lawyers to later backpedal on those stories.
For his part, Giuliani said in court that the case was "not a fraud case." Powell, in a court filing for her own defamation defense, argued that no reasonable person would have believed the claims she made on Fox.
Fox is also being sued by Smartmatic for $2,700,000,000; Fox has filed four motions to dismiss that lawsuit.
Several Fox personalities are quoted in Dominion's lawsuit, which says the hosts openly agreed with some of Giuliani's and Powell's assertions.
Because of Fox's status as a news organization — officially, at least — this case will be far more complicated than Dominion's suits against Giuliani, Powell and Lindell, according to local legal experts.
"The big question people are talking about right now is, it's pretty likely that Dominion and Smartmatic are going to be ruled to be public figures," says Derigan Silver, a media law professor at the University of Denver. "In that case, they're going to have to prove something called actual malice, which is knowledge of falsity or reckless disregard for the truth."
Silver explains that Dominion will have to demonstrate that Fox purposely reported something it knew to be false, had serious doubts about the truth of its statements but published them anyway, or intentionally avoided investigating whether the statements were true. "Actual malice is not about what the media organization did, it's about what the media organization knew at the time of publication," he says.
According to Chris Jennings, journalism and media production professor at Metropolitan State University of Denver, those deciding the case will have to take several elements into account. Among other things, they'll weigh whether Fox had the time to investigate further or needed to publish the material quickly, and whether its sources appeared to be reliable.
"It's really hard to see how a judge or a jury might react, and what other evidence might be presented to the courts," he says, adding, "but whatever's decided here will have a huge impact on what happens in the future" in similar defamation cases.
Dominion's lawsuit makes the argument that because Dominion sent Fox letters demanding retractions and other emails containing facts that disproved the rumors, Fox had to have known the statements were false, and that indicates malice.
"These companies want to strike back against this disinformation," Silver says. "The real goal of any action against the media should be to get the truth out there."
Dominion echoes that, saying it is suing over the damage done to the public's concept of fair elections, as well as the actual damage done to the company. And it has plenty of evidence regarding that: Dominion points out that it has already lost contract opportunities in Louisiana and Ohio, and claims that legislators in at least seven states, including Colorado, "have stated their intent to review and reassess those contracts...as a direct result of the lies peddled by Fox."
Those few Colorado legislators weren't alone in believing the rumors. Danny Moore, who'd been elected chair of Colorado's Independent Congressional Redistricting Commission last month, lost that spot on April 5, after it was revealed that Moore had questioned the integrity of the 2020 election through social media, decrying a "Democrat steal."
As for Fox, a spokesperson points to the big picture of the organization's election coverage, noting that the network's stories included a November 22 interview in which Fox's Eric Shawn asked Dominion spokesman Michael Steel about ongoing rumors. During that piece, Steel denied Powell's claims and numerous other speculations.
Dominion's lawsuit does note several instances in November when Fox anchors or editors publicly stated there was no evidence to back up the rumors, but that's not enough for the company.
"While these handful of statements from a handful of people at Fox do not absolve Fox for its onslaught of defamatory statements about Dominion," the lawsuit states, "they do demonstrate that Fox at a minimum recklessly disregarded, and really knew, the falsity of the lies its most popular on-air talent were repeatedly promoting."
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