Fox News Faces a Threat Like No Other

A lawsuit on election lies goes for the heart of its business model

Fox News host Tucker Carlson speaking with attendees at the 2018 Student Action Summit hosted by Turning Point USA. (Gage Skidmore/Creative Commons 2.0).

Starting on Apr. 17, a jury in Delaware will begin hearing arguments in a $1.6 billion defamation suit brought by Dominion Voting Systems against Fox News, for broadcasting lies about voter fraud. To date, the Dominion lawsuit is the most ambitious attempt at accountability for Trump's election lies. (State and federal probes remain ongoing in Georgia and Washington, D.C.) Fox News was the conduit by which many of these lies spread, culminating in the Jan. 6 Capitol riot. By contrast, the announced Jan. 6 prosecutions have mostly focused on low-level criminal offenses.

The case is also the biggest threat to Fox News, the most-watched cable network in the United States, since it was founded in 1996. Not only does it face the financial fallout from a potential judgment, but the case threatens its core business model. If the election lies that the network broadcasted are found to be defamatory, it will hamper its efforts to hold onto its right-wing audience as the 2024 election gears up with Donald Trump as the leading GOP presidential nominee. In other words, if compelled to act like a news organization in showing countervailing evidence to outlandish claims, its viewers may change the channel. 

Already, there are indications that the judge is dismissive of Fox's argument that it was just reporting on the news as other media did; Fox lawyers have asked why Dominion isn't suing everyone. In a legal filing released on March 31, Judge Eric M. Davis in the Delaware Superior Court drew a distinction between Fox and other news organizations. The judge wrote, "FNN's failure to reveal extensive contradicting evidence from the public sphere and Dominion itself indicates its reporting was not disinterested." On Apr. 11, the judge said that Fox could not use newsworthiness as a defense.

In addition, Fox has defended its hosts' statements as protected opinions, saying they were "figurative" or "hyperbolic" language. However, the record reveals that many lies were presented as facts. For example, on November 15, 2020, host Maria Bartiromo said: "There is much to understand about Smartmatic, which owns Dominion Voting Systems. They have businesses in Venezuela, Caracas [the capital]." She added, "Sidney Powell [a former Trump lawyer who worked on the 2020 election] is also talking about potential kickbacks that government officials who were asked to use Dominion [received]." Dominion has no ties to Venezuela; there were no kickbacks. While Bartiromo couches the second statement with the word "potential," the implication of a company supposedly doing business in authoritarian Venezuela is that it likely bribed government officials, too.

Judge Davis said Fox's defense of asserting its statements were both news reporting and opinion was not logical, since "it appears oxymoronic to call the Statements opinions while also asserting the Statements are newsworthy allegations and/or substantially accurate reports of official proceedings." A jury will now decide whether the statements made by Fox hosts and guests were facts, opinions, or so-called mixed opinions, that is, a host saying something that implies that they know things that the viewers don't. 

There are wild-cards in the case, including potentially more documents being revealed and the possibility of Rupert Murdoch testifying before a jury. On Apr. 12, the judge sanctioned Fox for possibly withholding documents, and will appoint a special master to decide this and another big question -- whether Fox obfuscated Rupert Murdoch's role at Fox News to hide information. Fox attorneys had previously said in 2021 that Murdoch had no official role at Fox News, but on Apr. 9 admitted to Dominion’s attorneys that Murdoch also is executive chair at Fox News.

Already, the lawsuit has revealed the hypocrisy of Fox hosts and staffers, who privately scoffed at the election lies of 2020, but broadcast them anyway to boost ratings. Host Tucker Carlson believed Powell was lying, but said “our viewers are good people and they believe it.”

There's no known precedent for a news outlet serving what it knows are lies to its audience, in a bid to keep its audience from going elsewhere, which was a strong concern at Fox with the far-right wing outlet Newsmax. While every news outlet caters to its audience to some degree by covering certain stories more than perhaps their news value might indicate (like the Gwyneth Paltrow ski trial), it's impossible to imagine CNN or MSNBC hosts serving lies to viewers to keep them from going to other networks.

The trial comes as many on the right think that the "actual malice" standard needed to prevail in defamation suits is too high; plaintiffs now must prove that a statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not.” (Mere mistakes are not liable.) Critics of this standard include Supreme Court Justice Clarence Thomas, former President Donald Trump, and Florida Gov. Ron DeSantis -- all of whom generally get favorable treatment from Fox News. Now, the tables have turned.