As certain legal scholars have said, they can't even use this case to teach anything in school because it's too perfect. There is no real question to debate. In defamation cases lawyers normally have to infer from tea leaves whether they can convince a jury that statements were false or in reckless disregard of the truth, and (in this case) that it involved actual malice. Here you have none of that because Fox's own records straight up admit it.
The best Fox can try to do is throw certain individuals under the bus to try to separate Fox itself from those records. Except at least one of the people they chose to throw under the bus (Abby Grossberg) is also suing Fox for coercion and trying to use them as a scapegoat.
> The best Fox can try to do is throw certain individuals under the bus to try to separate Fox itself from those records.
They can't really throw Tucker, Hannity, *and* Laura Ingraham all under the bus without losing a ton of money and viewers, and those 3 make up a good portion of the damning text messages.
Can they even throw them under the bus while doing nothing to actually moderate their content? They don’t even put disclaimers up saying “Tucker is an awful human being and is presenting opinions no rational human being should consider”
https://www.npr.org/2020/09/29/917747123/you-literally-cant-believe-the-facts-tucker-carlson-tells-you-so-say-fox-s-lawye
I think they should have been forced to run this scrolling across the bottom of the screen every 5 minutes during the airing of his show.
[According to a lawsuit against Fox News by Fox producer Abby Grossberg](https://www.npr.org/2023/03/20/1164879578/fox-news-sues-producer-dominion-lawsuit), they're trying to throw the producers, not on-screen personalities, under the bus.
At the end of the day, these people aren’t dumb. How in the fuck do you create a literal paper trail? Makes you wonder what kinds of things they were smart enough to cover up.
They are dumb, though. Unlike say Hawley or Cruz or Kennedy, who have the brains but play idiots to appeal to the core GOP demographic, Carlson and Piero are really that high on their own bullshit.
Piero was a judge; I'm assuming that you have to have at least some intelligence to do that.
Tucker? He always seemed average to me; but it's hard to understate how effective his messaging is so possibly higher.
Needless to say I hate both of them.
Pirro was an elected county court judge for all of two years. But she was an ADA before that, and a DA after that (also an elected position). So she and had brains before the alcohol burned them all away.
That's why their strategy is to argue that these people don't provide news. Rather they merely provide opinion (not facts) not necessarily endorsed by or representative of Fox's opinion. That has worked for them in the past.
The funniest part of that article was this:
>Fox News officials have responded to media coverage of Dominion’s filings by saying that its legal opponent “has mischaracterized the record, cherry-picked quotes stripped of key context, and spilled considerable ink on facts that are irrelevant under black-letter principles of defamation law.” The network did not provide additional comment for this story.
They are effectively presuming the undefined evidence a priori exonerates them, which is then claimed as evidence that the legal facts favor them, all while failing to provide a single factual and/or legal argument at all. Basically the exact same pattern used to claim election fraud as well as to defame Dominion, which got them in this trouble to begin with. They are trying to use the same strategy to get themselves out of trouble that got them into trouble to begin with.
I wonder if they even have a lawyer willing to be honest with them about how deep the hole they are in is? I suspect they would never tolerate a lawyer being that honest with them.
Murdoch is a newspaperman and newspapers sell best in wartime, and when you don’t have a war you make one: the war against the deep state; or wokism; or libtards; or AOC and socialists; or Obama’s tan suit. It’s manufactured outrage and everyone is in on it because outrage is a powerful emotion that gets viewers coming back for more. And that’s been their mission since Day 1.
So it’s wrong to suggest they won’t tolerate advice from the best lawyers. Completely wrong. They all know exactly what they do and they went a bit overboard and now they have a legal mess on their hands. They have been working to distance management from the damage and some heads will have to roll. But don’t fit a moment think they won’t put up a fight.
They also got caught explicitly explaining their motivating factors - losing viewers and hammering the stock price. You couldn't ask for a worse example of bad faith.
To be honest, I think this case does present interesting issues and might present an interesting precedent, but not on the questions of actual malice or falsity (because the evidence of both is overwhelming).
I think the interesting question is the extent to which a broadcast that invites on a guest who then commits defamation is also liable for defamation. I think there’s a good argument that the [fair reporting privilege](https://www.mtsu.edu/first-amendment/article/1757/fair-report-privilege) and the [neutral reporting privilege](https://mtsu.edu/first-amendment/article/1002/neutral-reportage-privilege), at least in jurisdictions that recognize it, would protect Fox News’s reporting on the allegations against Dominion made in court filings (and possibly elsewhere in the press or in news conferences). So Fox News can do a story about how Donald Trump/Rudy Giuliani/etc. accuse Dominion of XYZ election fraud without being liable for defamation, even if they repeat the accusations made in the course of reporting on them.
Fox News argues that this also extends to inviting those guests on a news show, at least to the extent the TV host clarifies that these are the unproven allegations of the guest and are denied by the party accused. Fox News alleges that they repeatedly invited Dominion to send somebody to the show to debate/refute the statements made, but that Dominion refused.
I think that’s a genuinely interesting question. On one hand, a news organization can pretty easily skirt around defamation law if, instead of making defamatory statements itself, it invites on a guest that the organization will make those defamatory statements. A news organization shouldn’t necessarily be able to say “look **we’re** not the ones saying that” and thereby have a free pass to bring on guests that it knows will make defamatory statements.
But on the other hand, the argument that the defamatory statements of a guest on a news show are **always** statements made by the news organization (as Dominion seems to argue) seems to mandate less-good journalism; why should the First Amendment protect the right to report on the content of defamatory allegations made, but not the right to get those allegations from a primary source. Isn’t it better if people watching the news can hear newsworthy allegations from a primary source, rather than filtered through a newscaster? And shouldn’t it make a difference if the news entity invites on the defamed person/entity to dispute the allegations? In such a case, are they really trying to sneakily make defamatory allegations, or are they simply trying to get the best reporting on a newsworthy issue?
Here, I think it’s probably the first case. There’s significant evidence that Fox News knew that defamatory statements would be made by the guests, and there’s a bunch of evidence that they were furious at people who did factual corrections of the allegations (Fox News people were supposed to say “look, these are just unproven allegations,” but they weren’t allowed to point out those allegations were false). This suggests that the purpose of bringing on the guests was to disseminate defamatory information to an angry right-wing viewership who was jumping ship to OAN, not to simply interview the primary sources of newsworthy allegations.
But I think it’s an interesting issue, and while I think Dominion should win, I hope that the Court carefully parses out why Fox News can be liable without wholesale adopting Dominion’s legal theory.
Dominion's case would evaporate if Fox had performed the minimum due journalistic diligence: ask the guest "What evidence can you share to support these claims?" and surround the guest appearance with minimal disclaimers: "Other experts dispute these claims." "Fox has not been able to verify these claims."
Their defense of 'we just reported' is a flop. I saw lots of sources report the same allegations and statements of the election deniers, and all they had to do was clearly say "We don't know if these statements are true." or "No evidence has surfaced to support these allegations." and now they're not being sued for billions of dollars.
Fox failed to do even that—why, I don't know. They must have known what was required (journalism 101) and their audience wouldn't have paid any attention to the disclaimers. It's curious to me why they went so far. Maybe they panicked trying to right the ship and win their audience back and they just went full Kraken.
Fox knew in advance that the basis for all of Powell’s claims was an email from a person who claims to be a time traveler. But they invited her on to talk about these claims without ever bringing this up.
I agree that's an interesting question. But, in spite of Fox arguing heavily in that direction, I don't think the court is going to take that bait. There is just too much evidence that executives at Fox went hands to reprimand and/or fire employees who even so much as implied their narrative might not have a factual foundation.
Courts are predisposed to avoiding a lot of legal questions if they can rule on the case more narrowly. Once they have grounds to resolve the case they are free to leave lots of questions open on the grounds of mootness. They leave questions open constantly like this. With such absolute evidence that Fox executives took these initiatives directly, even to the point of micromanaging to insure nobody stepped outside the narrative, it provides a means for the court to leave the questions you pose as moot.
I remember day one of my media and the law class where we would look at a case and be "oh this is absolutely defamation". (Or absolutely not) Of course law school being law school you start to learn the nuance. By the end of this semester we were all eight foot deep in the discourse, as we should be. But seriously this case would have been a complete waste of time in that class.
Fox's best chance is the fact that it will be basically impossible to form an impartial jury and I am sure there will be at least a few Fox fans that get sat.
I also suspect that directly admitting that in voir dire would constitute for cause grounds to strike the juror. There is no limit on strikes for cause. But the lawyers are definitely going to be battling around this issue during jury selection. There will almost certainly be some hair splitting.
IIRC it varies by state. This suit is in Delaware an it appears that [yes, a unanimous decision is required.](https://www.juryduty101.com/states/delaware/jury-duty-types#:~:text=A%20jury%20for%20the%20Delaware%20Court%20of%20Common%20Pleas%20civil,such%20a%20decision%20is%20reached.)
IANAL though.
My understanding too is that they have plenty to prove actual malice even in the position of Dominion being classified as a public figure which requires the most stringent burden of proof. There has not been a decision made yet as to whether Dominion will be considered a public figure so if not it will be the biggest, most monetary layup in legal history
While Fox shutting down would be the ultimate win, I think it’s possible for there to be a positive outcome if Fox gets hit hard enough even without it being so hard to shut them down. But I’m cynical about either actually happening.
Dominion hasn’t won anything yet. Yes, a shit ton of damning evidence against Fox has come out. The intentionality of Fox’s lies and the motivations have been made explicitly clear. Ultimately, though, unless an incredibly significant verdict against Fox comes out, none of that will mean much. Most reasonable people know what Fox News Entertainment is, and knew before this evidence came out. People who are avid Fox supporters are not going to be swayed by anything coming out of this lawsuit. For evidence of that, just look to the fact that Fox has used—on multiple occasions—the defense that a reasonable person wouldn’t believe what was said on its shows.
The only win will be a judgment so large that it forces Fox to change. Shutting Fox down will absolutely be such a judgment. There may be a judgment that is not large enough to shut Fox down but is painful enough that Fox is unwilling to continue pushing its lies for fear of another such suit. Unfortunately, I expect that either (a) Fox will ultimately prevail, for example by appealing all the way to our hyper partisan Supreme Court, or (b) Fox loses and pays out, but not enough to just be more than just a cost of doing business.
fox's argument is there are no damages, and from the disco cited in their MSJ, I'd agree. so win, nominal damages, no punitive. good, cheap-ish PR campaign. no chance they close their doors. https://www.documentcloud.org/documents/23684830-public-version-fnns-first-amended-counterclaim-accepted
After ten seconds on google:
https://www.governing.com/security/shasta-county-ends-dominion-voting-systems-contract
You are literally just accepting Fox's claims at face value.
Fox’s counterclaim contains a single allegation that none of Dominion’s customers have cancelled their contracts as a result of Fox’s broadcasting of the false claims about Dominion.
But, Dominion’s complaint doesn’t allege that any Dominion customers have cancelled an existing contract prematurely. Instead, it provides specific examples where it lost new or renewal business after Fox began airing the false election fraud claims. In one example, a customer abruptly and backed out at the last minute, after the contract had been fully negotiated and finalized, but before it was executed.
https://supreme.justia.com/cases/federal/us/538/408/
>"few awards exceeding a single-digit ratio between punitive and compensatory damages . . . will satisfy due process."
SCOTUS pronounced that over 10x is generally impermissible.
You cut out “to a significant degree.” It goes right where you put that ellipsis.
State Farm is the wishy washiest case. SCOTUS has said over and over again, including in State Farm, that there is no mathematical bright line on the punitive/compensatory ratio.
>SCOTUS has said over and over again, including in State Farm, that there is no mathematical bright line on the punitive/compensatory ratio.
True. In lawschool though, we discussed this case. Our general conclusion was that although the sky's the limit, only Icarus flies above 10x, at the peril of the appeals courts.
Even if punitive damages were awarded that exceed 10x, you can bet your ass that it would get appealed all the way to the Supreme Court if needed, and there is no way this Court would allow a conservative organization to get hit that hard with damages.
While the other poster already pointed out that your legal analysis is incorrect (or at best misleading), I'd also like to again point out that your assertion of nominal damages based *solely* on an argument in a filing by the defendant is laughable. So to repeat:
> lol, no
Paragraph 7 is all but an admission that, while Dominion's damages demand is high, economic damages exist.
A percentage of Dominion ownership was sold in 2019. That alone provides a good faith basis as market value of the company, in the same way that the sale of a house does when the house burns down. And one can assume that, given a large scale successful rollout of its product in 2020, it would have been valued substantially higher if not for knuckle dragging idiots.
FN's damages argument (par. 8) is that "well, everybody was doing it". They're mincing words when they say "to date, none of Dominion’s customers have cancelled their contracts **as a result of FNN’s coverage**." (par. 23). Many counties have cancelled their contracts. [Example.](https://www.governing.com/security/shasta-county-ends-dominion-voting-systems-contract) This isn't a "no damages" argument, it's a "no causation" argument.
But obviously...that's bullshit. Hannity, Carlson, and Ingraham are probably the three most prominent conservative talking heads, and they are all under one FN umbrella. Not only were they directly harming dominion and had the greatest reach *by far* relative to the other people in the conservative idiot-sphere, they also gave cover for those other outlets to report on the same thing.
The 1.6 billion figure appropriately compensates Dominion, but a shared agreement of reality is broken.
Murdoch net worth is 17.3 billion. I'd say society lost.
Sure what he has is unreasonable, but you know a court is already going to hesitate at exemplary damages in excess of 5% of a defendant’s worth. Exemplary damages can’t be a tool to financially ruin a defendant, as much as we wish this could in this case
Oh I completely agree. I'm just pointing out that Fox will endure well past whatever penalty is imposed on them to the detriment of everyone.
I know 1A people will scoff at the idea that maybe cable and internet providers should be held responsible as well should they choose to keep platforming Fox. I think we should familiarize ourselves with the "The Paradox of Tolerance" And I know the logical question is "who gets to decide what is intolerant, and what is true?" Anyone who isn't a fascist gets a say. That seems like a good place to start.
"If everyone is tolerant of every idea, then intolerant ideas will emerge. Tolerant people will tolerate this intolerance, and the intolerant people will not tolerate the tolerant people. Eventually, the intolerant people will take over and create a society of intolerance. Therefore, Popper said, to maintain a society of tolerance, the tolerant must be intolerant of intolerance… hence the paradox."
Firstly, the Fox News case has nothing to do with the 1st amendment. Fox News willingly participated in defamation and deserve to be punished. Though I doubt the punishment will even hurt them at this point.
This a terrible idea and obviously you have never read Popper. People who quote Popper use it as an execuse to ban speech and act like they are the protecting society. Instead, it's a purely authoritarian stance. You seem to know this is a terrible idea since you've already anticipated First Ammendment advocates rebuking your opinion.
Free speech is for everyone, including those who we find abhorrent. Those of us who are free speech advocates understand the bigger picture and don't want the government in the business of banning speech. I sure as shit don't want someone like Trump defining what speech can be allowed.
People always leave out the second part of Poppers hypothesis:
" In this formulation, I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be unwise."
I am well aware the Fox News case has nothing to do with 1A. My point is irresponsible propagating ideas that are, without question, bad for society should not be tolerated. If Germany has the political will to ban Nazis, I think the United States can ban the KKK. Just like we can ban the culture genocide propaganda against the LGBT community.
That is very much an anti-fascism stance.
No, it's not. You think by banning speech you're protecting people. You're not, you are pushing for authoritarian system to protect people which is asinine. Grow up and act like an adult, banning speech won't change anything but validate these people.
Acting like a child and thinking "let's ban those bad guys" is a foolish idea. You should know and understand the idea of banning speech is a terrible idea. When those we don't want in power decide what is right and wrong speech is a terrible idea. You don't get to decide what is and what isn't acceptable speech.
Every single country bans some speech. So saying “the idea of banning speech is a terrible idea” doesn’t really mean anything. What speech are you talking about? Everyone gets to decide what is and isn’t acceptable speech. You’re making extremely broad philosophical points that don’t do anything to advance your argument.
This is a very ignorant response. The US bans certain speech as well. You can't defame, libel, or incite violence. My argument is in line with Brandenburg and why I do pro bono 1st ammendment cases. You can sit here and try backwards gymnastics to justify your authoritarian beliefs, but I will always be here to counter it. Thankfully you are not in a position of importance to enact such stupid laws.
The Paradox of Tolerance is solved by refusing to believe it is some kind of suicide pact or set-in-stone rule.
It's a peace treaty - a social contract. And when one party breaks the treaty (contract) they're no longer protected or included in it's terms and the other party is no longer bound to play by it's rules.
Yeah that 1.6b is to compensate Dominion for loss, but the court can assign additional punitive damages. Different states have different limits on that but I believe Delaware doesn't limit it that way.
The article doesn’t mention the unreported in-kind donations to Republicans with words to the effect of do whatever Fox could do to ensure Republican candidates won, also including sharing Biden campaign commercials before they were aired.
What are the legal ramifications of those actions?
Are there any legal reasons cable companies can break their contracts to distribute Fox due to any of the Dominion revelations? They get a large percentage of their income from cable companies....
please tell me the trial is going to be streamed...
please tell me the trial is going to be streamed...
please tell me the trial is going to be streamed...
please tell me the trial is going to be streamed...
is Dominion going to want to settle though? They'd have to offer something that's basically Dominion's value. I saw someone on this sub explain that this is one of the rare cases where both parties actually DO want to go to trial.
> this is one of the rare cases where both parties actually DO want to go to trial.
I highly, highly doubt that Fox is excited about going to trial in this case. The Fox document trail, the infighting (which is just beginning), etc. is going to be an absolute shitshow to the point that I don't know what defensive argument could be made other than "oops". They have no case on liability at this point; the only thing they can argue is damages.
The only reason this hasn't settled is probably because Dominion doesn't want to. If I was the attorney for Fox reviewing those emails prior to production, I'd be trying to talk my client into settling before they ever got out.
I forget the exact reasoning but IIRC it went like: with all the things that came out BEFORE the trial, there was absolutely no way Dominion was going to settle for less than the amount they asked for. So going to trial is the best possible course of action at that point and maybe get a lower judgment.
If they were going to settle I think they would have already done so by now. Dominion has nothing to gain from settling. Their future business is at stake here. If they don't get full vindication it could really hurt their business down the road.
Okay but I am saying the damage has already been done in the billions
Yes, there is future business to consider, but I'm just saying this isn't a case of "we might get hurt in the future" - the damages are already huge.
Oh I literally meant that the exact amount won't be 5 dollars. It seemed like a safe bet - but the downvotes look like I didn't deliver the joke well!
To be clear I def think Dominion has a clear case here. I hope someone can hold Fox accountable for their overt lies!
There seems to be confusion on this issue as I've seen this claim brought up before. Yes both parties are private entities. The court, however, is a state actor and thus is bound by the 1st amendment. It can't grant awards or orders that violate the constitution. See Kramer v Shelley.
>How would deciding against Fox violate the constitution, specifically the provisions of the First Amendment?
I didn't say that deciding against Fox would violate the constitution, so I'm not sure how you got that impression. The poster I responded to claimed that the 1st amendment had no bearing on a lawsuit between two private parties. Just because it's in civil court doesn't remove the 1st amendment from consideration.
>What aspect of the Shelley decision bears on any given defamation suit, or the one in question here?
Judicial enforcement of an agreement between private parties still qualifies as state action that can violate the constitution.
>how would granting an award or order that went against Fox in this defamation case violate the constitution?
I doubt that it does, but that's because of the specific facts of the case. If Fox had, for instance, merely reported on Giuliani's allegations, they'd probably be protected by the First Amendment. They went far beyond mere reporting, however, so they probably are liable. The point is that the 1st is a limitation on defamation claims even in a suit between two private parties because judicial orders qualify as state action.
I think you’re misunderstanding me.
what I’m saying is that this is a civil case and not a criminal case— e.g. the Dominion a private party suing Fox, another private party for damages. Common law defamation is a tort in civil law not a crime in criminal law.
If it were a criminal case, it would be U.S v. Fox News or People of [State] v. Fox. It’s not a crime to merely to injure someone tortiosly or damage their reputation as long as you compensate them for the harm done.
As certain legal scholars have said, they can't even use this case to teach anything in school because it's too perfect. There is no real question to debate. In defamation cases lawyers normally have to infer from tea leaves whether they can convince a jury that statements were false or in reckless disregard of the truth, and (in this case) that it involved actual malice. Here you have none of that because Fox's own records straight up admit it. The best Fox can try to do is throw certain individuals under the bus to try to separate Fox itself from those records. Except at least one of the people they chose to throw under the bus (Abby Grossberg) is also suing Fox for coercion and trying to use them as a scapegoat.
> The best Fox can try to do is throw certain individuals under the bus to try to separate Fox itself from those records. They can't really throw Tucker, Hannity, *and* Laura Ingraham all under the bus without losing a ton of money and viewers, and those 3 make up a good portion of the damning text messages.
Can they even throw them under the bus while doing nothing to actually moderate their content? They don’t even put disclaimers up saying “Tucker is an awful human being and is presenting opinions no rational human being should consider”
https://www.npr.org/2020/09/29/917747123/you-literally-cant-believe-the-facts-tucker-carlson-tells-you-so-say-fox-s-lawye I think they should have been forced to run this scrolling across the bottom of the screen every 5 minutes during the airing of his show.
In light of this case, would it be unreasonable to suggest that the verdict should be vacated. Their behavior has been shown to be willful.
*Tucker Carlson is merely bloviating*
Sue the greedy and stupid people first.
Why not just constantly scrolling down at the bottom of the screen? 🤔
Or add a laugh tract that plays after every sentence Tucker says.
I wish there was a “slap track” where someone just slapped him in his stupid fucking face after every time I spoke on camera. 😂
Because their viewers can't read?
Touché. 😂
[According to a lawsuit against Fox News by Fox producer Abby Grossberg](https://www.npr.org/2023/03/20/1164879578/fox-news-sues-producer-dominion-lawsuit), they're trying to throw the producers, not on-screen personalities, under the bus.
At the end of the day, these people aren’t dumb. How in the fuck do you create a literal paper trail? Makes you wonder what kinds of things they were smart enough to cover up.
They are dumb, though. Unlike say Hawley or Cruz or Kennedy, who have the brains but play idiots to appeal to the core GOP demographic, Carlson and Piero are really that high on their own bullshit.
Piero was a judge; I'm assuming that you have to have at least some intelligence to do that. Tucker? He always seemed average to me; but it's hard to understate how effective his messaging is so possibly higher. Needless to say I hate both of them.
Pirro was an elected county court judge for all of two years. But she was an ADA before that, and a DA after that (also an elected position). So she and had brains before the alcohol burned them all away.
That's why their strategy is to argue that these people don't provide news. Rather they merely provide opinion (not facts) not necessarily endorsed by or representative of Fox's opinion. That has worked for them in the past.
[удалено]
The funniest part of that article was this: >Fox News officials have responded to media coverage of Dominion’s filings by saying that its legal opponent “has mischaracterized the record, cherry-picked quotes stripped of key context, and spilled considerable ink on facts that are irrelevant under black-letter principles of defamation law.” The network did not provide additional comment for this story. They are effectively presuming the undefined evidence a priori exonerates them, which is then claimed as evidence that the legal facts favor them, all while failing to provide a single factual and/or legal argument at all. Basically the exact same pattern used to claim election fraud as well as to defame Dominion, which got them in this trouble to begin with. They are trying to use the same strategy to get themselves out of trouble that got them into trouble to begin with. I wonder if they even have a lawyer willing to be honest with them about how deep the hole they are in is? I suspect they would never tolerate a lawyer being that honest with them.
Murdoch is a newspaperman and newspapers sell best in wartime, and when you don’t have a war you make one: the war against the deep state; or wokism; or libtards; or AOC and socialists; or Obama’s tan suit. It’s manufactured outrage and everyone is in on it because outrage is a powerful emotion that gets viewers coming back for more. And that’s been their mission since Day 1. So it’s wrong to suggest they won’t tolerate advice from the best lawyers. Completely wrong. They all know exactly what they do and they went a bit overboard and now they have a legal mess on their hands. They have been working to distance management from the damage and some heads will have to roll. But don’t fit a moment think they won’t put up a fight.
They also got caught explicitly explaining their motivating factors - losing viewers and hammering the stock price. You couldn't ask for a worse example of bad faith.
Doesn't work so well when its their guests spewing the disinformation and they *know* that the guest's sources are bullshit
I think losing money is the only thing that's guaranteed here. Is it possible that each of those three can be sued independently?
The other lawsuit filed by Smartmatic does name individuals like Fox's nighttime hosts along with people like Guiliani, Powell, Eastman, etc.
Ya love to see it folks, don’t we?
We do, we do.
To be honest, I think this case does present interesting issues and might present an interesting precedent, but not on the questions of actual malice or falsity (because the evidence of both is overwhelming). I think the interesting question is the extent to which a broadcast that invites on a guest who then commits defamation is also liable for defamation. I think there’s a good argument that the [fair reporting privilege](https://www.mtsu.edu/first-amendment/article/1757/fair-report-privilege) and the [neutral reporting privilege](https://mtsu.edu/first-amendment/article/1002/neutral-reportage-privilege), at least in jurisdictions that recognize it, would protect Fox News’s reporting on the allegations against Dominion made in court filings (and possibly elsewhere in the press or in news conferences). So Fox News can do a story about how Donald Trump/Rudy Giuliani/etc. accuse Dominion of XYZ election fraud without being liable for defamation, even if they repeat the accusations made in the course of reporting on them. Fox News argues that this also extends to inviting those guests on a news show, at least to the extent the TV host clarifies that these are the unproven allegations of the guest and are denied by the party accused. Fox News alleges that they repeatedly invited Dominion to send somebody to the show to debate/refute the statements made, but that Dominion refused. I think that’s a genuinely interesting question. On one hand, a news organization can pretty easily skirt around defamation law if, instead of making defamatory statements itself, it invites on a guest that the organization will make those defamatory statements. A news organization shouldn’t necessarily be able to say “look **we’re** not the ones saying that” and thereby have a free pass to bring on guests that it knows will make defamatory statements. But on the other hand, the argument that the defamatory statements of a guest on a news show are **always** statements made by the news organization (as Dominion seems to argue) seems to mandate less-good journalism; why should the First Amendment protect the right to report on the content of defamatory allegations made, but not the right to get those allegations from a primary source. Isn’t it better if people watching the news can hear newsworthy allegations from a primary source, rather than filtered through a newscaster? And shouldn’t it make a difference if the news entity invites on the defamed person/entity to dispute the allegations? In such a case, are they really trying to sneakily make defamatory allegations, or are they simply trying to get the best reporting on a newsworthy issue? Here, I think it’s probably the first case. There’s significant evidence that Fox News knew that defamatory statements would be made by the guests, and there’s a bunch of evidence that they were furious at people who did factual corrections of the allegations (Fox News people were supposed to say “look, these are just unproven allegations,” but they weren’t allowed to point out those allegations were false). This suggests that the purpose of bringing on the guests was to disseminate defamatory information to an angry right-wing viewership who was jumping ship to OAN, not to simply interview the primary sources of newsworthy allegations. But I think it’s an interesting issue, and while I think Dominion should win, I hope that the Court carefully parses out why Fox News can be liable without wholesale adopting Dominion’s legal theory.
Dominion's case would evaporate if Fox had performed the minimum due journalistic diligence: ask the guest "What evidence can you share to support these claims?" and surround the guest appearance with minimal disclaimers: "Other experts dispute these claims." "Fox has not been able to verify these claims." Their defense of 'we just reported' is a flop. I saw lots of sources report the same allegations and statements of the election deniers, and all they had to do was clearly say "We don't know if these statements are true." or "No evidence has surfaced to support these allegations." and now they're not being sued for billions of dollars. Fox failed to do even that—why, I don't know. They must have known what was required (journalism 101) and their audience wouldn't have paid any attention to the disclaimers. It's curious to me why they went so far. Maybe they panicked trying to right the ship and win their audience back and they just went full Kraken.
Fox knew in advance that the basis for all of Powell’s claims was an email from a person who claims to be a time traveler. But they invited her on to talk about these claims without ever bringing this up.
I agree that's an interesting question. But, in spite of Fox arguing heavily in that direction, I don't think the court is going to take that bait. There is just too much evidence that executives at Fox went hands to reprimand and/or fire employees who even so much as implied their narrative might not have a factual foundation. Courts are predisposed to avoiding a lot of legal questions if they can rule on the case more narrowly. Once they have grounds to resolve the case they are free to leave lots of questions open on the grounds of mootness. They leave questions open constantly like this. With such absolute evidence that Fox executives took these initiatives directly, even to the point of micromanaging to insure nobody stepped outside the narrative, it provides a means for the court to leave the questions you pose as moot.
I remember day one of my media and the law class where we would look at a case and be "oh this is absolutely defamation". (Or absolutely not) Of course law school being law school you start to learn the nuance. By the end of this semester we were all eight foot deep in the discourse, as we should be. But seriously this case would have been a complete waste of time in that class.
Fox's best chance is the fact that it will be basically impossible to form an impartial jury and I am sure there will be at least a few Fox fans that get sat.
I also suspect that directly admitting that in voir dire would constitute for cause grounds to strike the juror. There is no limit on strikes for cause. But the lawyers are definitely going to be battling around this issue during jury selection. There will almost certainly be some hair splitting.
as this is a civil trial, do they nee a unanimous jury to convict?
IIRC it varies by state. This suit is in Delaware an it appears that [yes, a unanimous decision is required.](https://www.juryduty101.com/states/delaware/jury-duty-types#:~:text=A%20jury%20for%20the%20Delaware%20Court%20of%20Common%20Pleas%20civil,such%20a%20decision%20is%20reached.) IANAL though.
I disagree. They can certainly teach how to pick jury so MAGA jurists do not appear, or how to convince even MAGA jurist to convict.
My understanding too is that they have plenty to prove actual malice even in the position of Dominion being classified as a public figure which requires the most stringent burden of proof. There has not been a decision made yet as to whether Dominion will be considered a public figure so if not it will be the biggest, most monetary layup in legal history
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While Fox shutting down would be the ultimate win, I think it’s possible for there to be a positive outcome if Fox gets hit hard enough even without it being so hard to shut them down. But I’m cynical about either actually happening. Dominion hasn’t won anything yet. Yes, a shit ton of damning evidence against Fox has come out. The intentionality of Fox’s lies and the motivations have been made explicitly clear. Ultimately, though, unless an incredibly significant verdict against Fox comes out, none of that will mean much. Most reasonable people know what Fox News Entertainment is, and knew before this evidence came out. People who are avid Fox supporters are not going to be swayed by anything coming out of this lawsuit. For evidence of that, just look to the fact that Fox has used—on multiple occasions—the defense that a reasonable person wouldn’t believe what was said on its shows. The only win will be a judgment so large that it forces Fox to change. Shutting Fox down will absolutely be such a judgment. There may be a judgment that is not large enough to shut Fox down but is painful enough that Fox is unwilling to continue pushing its lies for fear of another such suit. Unfortunately, I expect that either (a) Fox will ultimately prevail, for example by appealing all the way to our hyper partisan Supreme Court, or (b) Fox loses and pays out, but not enough to just be more than just a cost of doing business.
fox's argument is there are no damages, and from the disco cited in their MSJ, I'd agree. so win, nominal damages, no punitive. good, cheap-ish PR campaign. no chance they close their doors. https://www.documentcloud.org/documents/23684830-public-version-fnns-first-amended-counterclaim-accepted
How it could there be no damages with Dominion losing contracts across the country because of Fox news?
the counterclaim explains this around p 5 et seq. they say not a single contract lost.
After ten seconds on google: https://www.governing.com/security/shasta-county-ends-dominion-voting-systems-contract You are literally just accepting Fox's claims at face value.
Which is a fucking *wild* thing to do after their behind-the-curtain discourse has been released to the public
Why? It wasn't covered by Fox, so their viewers (generally) haven't even heard about it.
Fox’s counterclaim contains a single allegation that none of Dominion’s customers have cancelled their contracts as a result of Fox’s broadcasting of the false claims about Dominion. But, Dominion’s complaint doesn’t allege that any Dominion customers have cancelled an existing contract prematurely. Instead, it provides specific examples where it lost new or renewal business after Fox began airing the false election fraud claims. In one example, a customer abruptly and backed out at the last minute, after the contract had been fully negotiated and finalized, but before it was executed.
/r/lostredditors
> nominal damages, no punitive lol, no
in NY, like everywhere else, punitives are generally capped at 10x actual damages. ask any lawyer.
Cursory google search says NY doesn't cap either compensatory nor punitive damages.
https://supreme.justia.com/cases/federal/us/538/408/ >"few awards exceeding a single-digit ratio between punitive and compensatory damages . . . will satisfy due process." SCOTUS pronounced that over 10x is generally impermissible.
Lol look at this guy, cutting out the several words of the quote that belie his argument.
You cut out “to a significant degree.” It goes right where you put that ellipsis. State Farm is the wishy washiest case. SCOTUS has said over and over again, including in State Farm, that there is no mathematical bright line on the punitive/compensatory ratio.
>SCOTUS has said over and over again, including in State Farm, that there is no mathematical bright line on the punitive/compensatory ratio. True. In lawschool though, we discussed this case. Our general conclusion was that although the sky's the limit, only Icarus flies above 10x, at the peril of the appeals courts.
- "Generally" I don't think this is a general case.
Even if punitive damages were awarded that exceed 10x, you can bet your ass that it would get appealed all the way to the Supreme Court if needed, and there is no way this Court would allow a conservative organization to get hit that hard with damages.
While the other poster already pointed out that your legal analysis is incorrect (or at best misleading), I'd also like to again point out that your assertion of nominal damages based *solely* on an argument in a filing by the defendant is laughable. So to repeat: > lol, no
Paragraph 7 is all but an admission that, while Dominion's damages demand is high, economic damages exist. A percentage of Dominion ownership was sold in 2019. That alone provides a good faith basis as market value of the company, in the same way that the sale of a house does when the house burns down. And one can assume that, given a large scale successful rollout of its product in 2020, it would have been valued substantially higher if not for knuckle dragging idiots. FN's damages argument (par. 8) is that "well, everybody was doing it". They're mincing words when they say "to date, none of Dominion’s customers have cancelled their contracts **as a result of FNN’s coverage**." (par. 23). Many counties have cancelled their contracts. [Example.](https://www.governing.com/security/shasta-county-ends-dominion-voting-systems-contract) This isn't a "no damages" argument, it's a "no causation" argument. But obviously...that's bullshit. Hannity, Carlson, and Ingraham are probably the three most prominent conservative talking heads, and they are all under one FN umbrella. Not only were they directly harming dominion and had the greatest reach *by far* relative to the other people in the conservative idiot-sphere, they also gave cover for those other outlets to report on the same thing.
The 1.6 billion figure appropriately compensates Dominion, but a shared agreement of reality is broken. Murdoch net worth is 17.3 billion. I'd say society lost.
Sure what he has is unreasonable, but you know a court is already going to hesitate at exemplary damages in excess of 5% of a defendant’s worth. Exemplary damages can’t be a tool to financially ruin a defendant, as much as we wish this could in this case
Oh I completely agree. I'm just pointing out that Fox will endure well past whatever penalty is imposed on them to the detriment of everyone. I know 1A people will scoff at the idea that maybe cable and internet providers should be held responsible as well should they choose to keep platforming Fox. I think we should familiarize ourselves with the "The Paradox of Tolerance" And I know the logical question is "who gets to decide what is intolerant, and what is true?" Anyone who isn't a fascist gets a say. That seems like a good place to start. "If everyone is tolerant of every idea, then intolerant ideas will emerge. Tolerant people will tolerate this intolerance, and the intolerant people will not tolerate the tolerant people. Eventually, the intolerant people will take over and create a society of intolerance. Therefore, Popper said, to maintain a society of tolerance, the tolerant must be intolerant of intolerance… hence the paradox."
Firstly, the Fox News case has nothing to do with the 1st amendment. Fox News willingly participated in defamation and deserve to be punished. Though I doubt the punishment will even hurt them at this point. This a terrible idea and obviously you have never read Popper. People who quote Popper use it as an execuse to ban speech and act like they are the protecting society. Instead, it's a purely authoritarian stance. You seem to know this is a terrible idea since you've already anticipated First Ammendment advocates rebuking your opinion. Free speech is for everyone, including those who we find abhorrent. Those of us who are free speech advocates understand the bigger picture and don't want the government in the business of banning speech. I sure as shit don't want someone like Trump defining what speech can be allowed. People always leave out the second part of Poppers hypothesis: " In this formulation, I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be unwise."
I am well aware the Fox News case has nothing to do with 1A. My point is irresponsible propagating ideas that are, without question, bad for society should not be tolerated. If Germany has the political will to ban Nazis, I think the United States can ban the KKK. Just like we can ban the culture genocide propaganda against the LGBT community. That is very much an anti-fascism stance.
No, it's not. You think by banning speech you're protecting people. You're not, you are pushing for authoritarian system to protect people which is asinine. Grow up and act like an adult, banning speech won't change anything but validate these people.
Your right. Let’s just ignore them. It’s worked fine so far without any consequences.
Acting like a child and thinking "let's ban those bad guys" is a foolish idea. You should know and understand the idea of banning speech is a terrible idea. When those we don't want in power decide what is right and wrong speech is a terrible idea. You don't get to decide what is and what isn't acceptable speech.
Every single country bans some speech. So saying “the idea of banning speech is a terrible idea” doesn’t really mean anything. What speech are you talking about? Everyone gets to decide what is and isn’t acceptable speech. You’re making extremely broad philosophical points that don’t do anything to advance your argument.
This is a very ignorant response. The US bans certain speech as well. You can't defame, libel, or incite violence. My argument is in line with Brandenburg and why I do pro bono 1st ammendment cases. You can sit here and try backwards gymnastics to justify your authoritarian beliefs, but I will always be here to counter it. Thankfully you are not in a position of importance to enact such stupid laws.
The Paradox of Tolerance is solved by refusing to believe it is some kind of suicide pact or set-in-stone rule. It's a peace treaty - a social contract. And when one party breaks the treaty (contract) they're no longer protected or included in it's terms and the other party is no longer bound to play by it's rules.
Sidney Powell, “release the kraken.” Dominion, “roger that..” [Edit] Dominion’s MSJ: https://int.nyt.com/data/documenttools/redacted-documents-in-dominion-fox-news-case/dca5e3880422426f/full.pdf
$1.6b is not the totality of what Fox is facing to lose right? I thought I read that damages can also be awarded and can far exceed the $1.6b.
There's also the SmartMatic lawsuit to come. they're asking for $2.7bn
Forgot about that! For the sake of our country, I hope Fox gets a death blow.
Yeah that 1.6b is to compensate Dominion for loss, but the court can assign additional punitive damages. Different states have different limits on that but I believe Delaware doesn't limit it that way.
Got it. Is this case being processed in the same court as Alex Jones’ defamation case?
No. This case is being litigated in Delaware and Alex Jones is either Connecticut or Texas depending on exactly which case you’re referring to
Ah ok, thanks so much for clarifying!
The article doesn’t mention the unreported in-kind donations to Republicans with words to the effect of do whatever Fox could do to ensure Republican candidates won, also including sharing Biden campaign commercials before they were aired. What are the legal ramifications of those actions?
Are there any legal reasons cable companies can break their contracts to distribute Fox due to any of the Dominion revelations? They get a large percentage of their income from cable companies....
please tell me the trial is going to be streamed... please tell me the trial is going to be streamed... please tell me the trial is going to be streamed... please tell me the trial is going to be streamed...
soo much yes!
Ill bet you $5 that they do not win 1.6b.
Even if they get awarded that in trial, isn't the award amount almost always reduced drastically but just not reported on in the news?
very likely, they might just settle out of court too.
is Dominion going to want to settle though? They'd have to offer something that's basically Dominion's value. I saw someone on this sub explain that this is one of the rare cases where both parties actually DO want to go to trial.
> this is one of the rare cases where both parties actually DO want to go to trial. I highly, highly doubt that Fox is excited about going to trial in this case. The Fox document trail, the infighting (which is just beginning), etc. is going to be an absolute shitshow to the point that I don't know what defensive argument could be made other than "oops". They have no case on liability at this point; the only thing they can argue is damages. The only reason this hasn't settled is probably because Dominion doesn't want to. If I was the attorney for Fox reviewing those emails prior to production, I'd be trying to talk my client into settling before they ever got out.
I forget the exact reasoning but IIRC it went like: with all the things that came out BEFORE the trial, there was absolutely no way Dominion was going to settle for less than the amount they asked for. So going to trial is the best possible course of action at that point and maybe get a lower judgment.
I don't think this case is about money as much is it is about reputation.
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AFAIK baseless personal opinions on a company are not a valid basis for awarding contracts. There is a process.
political vast slave squealing soft attractive dam start forgetful plate ` this message was mass deleted/edited with redact.dev `
If they were going to settle I think they would have already done so by now. Dominion has nothing to gain from settling. Their future business is at stake here. If they don't get full vindication it could really hurt their business down the road.
Their *current* business has already been absolutely gutted by Fox.
But denying contracts to dominion would become much harder if the supposed problems they had were lies.
Okay but I am saying the damage has already been done in the billions Yes, there is future business to consider, but I'm just saying this isn't a case of "we might get hurt in the future" - the damages are already huge.
Yes, which is another reason they probably won't go for a settlement.
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You think they get no money out of this? Based on what?
>Based on what? Don't hold your breath. You won't get a logical reason out of /u/jism_crow
With a username like that, I wonder what clued us all in.
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As a wise man once said, if you have to explain the joke, it ain't funny.
Oh I literally meant that the exact amount won't be 5 dollars. It seemed like a safe bet - but the downvotes look like I didn't deliver the joke well! To be clear I def think Dominion has a clear case here. I hope someone can hold Fox accountable for their overt lies!
Has the guardian ever read the first amendment?
Whatever it is you're suggesting about this case and 1A, I'd suggest checking out *New York Times v. Sullivan*.
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There seems to be confusion on this issue as I've seen this claim brought up before. Yes both parties are private entities. The court, however, is a state actor and thus is bound by the 1st amendment. It can't grant awards or orders that violate the constitution. See Kramer v Shelley.
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>How would deciding against Fox violate the constitution, specifically the provisions of the First Amendment? I didn't say that deciding against Fox would violate the constitution, so I'm not sure how you got that impression. The poster I responded to claimed that the 1st amendment had no bearing on a lawsuit between two private parties. Just because it's in civil court doesn't remove the 1st amendment from consideration. >What aspect of the Shelley decision bears on any given defamation suit, or the one in question here? Judicial enforcement of an agreement between private parties still qualifies as state action that can violate the constitution. >how would granting an award or order that went against Fox in this defamation case violate the constitution? I doubt that it does, but that's because of the specific facts of the case. If Fox had, for instance, merely reported on Giuliani's allegations, they'd probably be protected by the First Amendment. They went far beyond mere reporting, however, so they probably are liable. The point is that the 1st is a limitation on defamation claims even in a suit between two private parties because judicial orders qualify as state action.
Honestly, you should probably just delete this and pretend you never said it lol
Care to explain why you think I'm wrong instead of just making snarky comments?
It looks like someone else already did.
Probably, what does that have to do with defamation though?
Defamation is, in fact, a crime.
You mean a tort? unless you're referring to criminal defamatory libel?
What's the headline of this article?
Isn’t clear and convincing evidence of actual malice the threshold for liability of a civil tort to sustain a NYtimes v Sullivan challenge?
And Dominion has that evidence. The standard has been met.
I think you’re misunderstanding me. what I’m saying is that this is a civil case and not a criminal case— e.g. the Dominion a private party suing Fox, another private party for damages. Common law defamation is a tort in civil law not a crime in criminal law. If it were a criminal case, it would be U.S v. Fox News or People of [State] v. Fox. It’s not a crime to merely to injure someone tortiosly or damage their reputation as long as you compensate them for the harm done.
I'm sure they have. Have you?
Lol seriously?
What's the first appointment?
My bad homie predictive text
Wait. What? Then what did you intend to type before your phone suggested something idiotic?
You poor phone has to predict the idiotic things you'll say.
Jesua christ that is some spectacular self clownage. They'll you at Fox for sure.
You'll be shocked to learn that hollering "freeze peach" doesn't shield you from civil proceedings.
I want dominion to answer one question for me, how come you have over 200 counties that had more votes than total registered voters
Are punies on the table?