Understanding the Dominion v. Fox News Defamation Lawsuit

What Would Dominion Have Had to Prove to Win Its Defamation Case?

This case was unusual both because of the huge amount of money involved and because the statements at issue deal with the integrity and fairness of a presidential election. But, ultimately, Dominion's case still hinged on its ability to prove the basic elements of a defamation claim.

In his summary judgment ruling, Judge Davis ruled in Dominion's favor on most of these elements, but left for the jury the question of whether Fox and its employees acted with actual malice. We'll get into what this means a little later on.

Dominion Needed to Show That the Statements Were Assertions of Fact, Not Just Opinions

Defamation law protects people's reputations from false accusations, but it also leaves room for people to express negative opinions. It's not defamation to say that you don't like someone or don't trust them—those are opinions protected by the First Amendment. But if you say things that a reasonable person would assume are statements of fact, you could be liable for defamation if those statements aren't true.

In his summary judgment ruling, Judge Davis found that the statements broadcast by Fox News and posted on its hosts' social media accounts were statements of fact, not opinions. His analysis noted:

• Assertions of fact, unlike opinions, can be proven true or false. Judge Davis ruled that the statements about Dominion were factual assertions, including accusations that the company "committed election fraud; manipulated vote counts through its software and algorithms; [was] founded in Venezuela to rig elections for dictator Hugo Chavez; and paid kickbacks to government officials who used the machines in the Election."
• Context is important when deciding if statements should be interpreted as assertions of fact. For example, if a stand-up comedian says something during a performance, that context would strongly suggest that the statements weren't meant to be taken seriously. Here, though, Judge Davis noted that the statements were made on Fox News and Fox Business, which "hold themselves to the public as news organizations and recognize [that] viewers rely on them for reliable, accurate facts."
• Saying "I think" or using other qualifiers doesn't automatically make a statement an opinion. As Judge Davis noted, whether a statement is an assertion of fact is judged by "the full context of the overall communication." For example, he found that the full context of an exchange between Fox host Lou Dobbs and Rudy Giuliani demonstrated that they were asserting facts about Dominion, including that the company was involved in an effort to "overthrow the President of the United States." Crucially, Judge Davis found that Dobbs's use of phrases like "I say maybe, I'm not suggesting it is," did not transform the ensuing statement into an opinion.

Dominion Had to Prove That the Statements Were False

True statements can't be defamatory—you can't be held liable for telling the truth, no matter how bad the truth makes someone look. That's why, in many defamation cases, defendants make a strong effort to show that the statements at issue are true.

This is another issue where Judge Davis ruled in Dominion's favor. Fox didn't make a serious effort to argue that the statements were true. The evidence in the case showed that people at Fox—including Rupert Murdoch and many of the network's hosts, editors and executives—all agreed that the accusations against Dominion weren't credible.

Dominion Needed to Show That the False Statements Weren't Protected by the First Amendment or Another Privilege

While Fox didn't argue that the statements themselves contained truthful information, it did argue that it was entitled to report on and repeat the statements as part of its news coverage of the 2020 election and its aftermath. Judge Davis rejected this argument in his summary judgment ruling.

The right to report the news is one of the privileges defendants can raise to argue that they shouldn't be held liable for defamation. A privileged statement is one that you're allowed to make even if it has defamatory claims.

Here, Fox asserted that the statements were covered by two privileges.

Fox asserted the "neutral report" privilege. This privilege protects reporters and others who repeat defamatory allegations in the course of reporting and commenting on the news. Judge Davis decided that this privilege didn't apply to Fox, noting that it only protects "good-faith, disinterested reporting." He pointed out that Fox presented the allegations against Dominion, but did not "reveal extensive contradicting evidence from the public sphere and [from] Dominion itself." Because Fox didn't report both sides of the story, Judge Davis ruled that it couldn't assert the neutral report privilege.

Fox asserted the "fair report" privilege. This privilege protects the right to repeat statements that are made as part of official proceedings. For example, it can't be defamatory for a news outlet to publish portions of a prosecutor's opening statement in a murder case, even if it turns out that the person on trial was wrongfully accused.

Judge Davis found two problems with Fox's attempt to claim this privilege:

• The privilege only applies to statements about the proceedings themselves, not statements about the underlying facts. So, for example, paraphrasing a prosecutor's opening statement can't be defamatory, but the privilege wouldn't protect your own assertions about why the facts prove that the defendant must be guilty. Here, Judge Davis found that the statements broadcast by Fox weren't reports of official proceedings (for example, lawsuits challenging the validity of the election). Instead, he found that the statements were assertions about the underlying facts of what Dominion actually did (or didn't do).
• The privilege applies only to "substantially accurate reports about proceedings." Even if you're reporting on a trial or other official proceeding, you still might be liable for defamation if you cherry-pick statements in a way that paints someone in an unfairly negative light. Judge Davis found that, even if the statements aired on Fox were interpreted as reports about election lawsuits, the coverage was so one-sided and inaccurate that it wouldn't be protected by the fair report privilege.

Dominion Had to Show That It Was Harmed by the False Statements

Not every false statement about a person or company is defamatory—the statement at issue has to be harmful, too.

Sometimes a plaintiff proves they were harmed by showing how the false statements exposed them to ridicule or drove customers away from their business. Dominion argued to Judge Davis that it had suffered these kinds of harms because of false statements about the company—for example, it presented evidence that it had lost business opportunities and that its employees had been threatened.

But Dominion also argued, and Judge Davis agreed, that the statements aired by Fox were defamatory per se. If a statement is defamatory per se that means it's so obviously harmful to a person's reputation that there's no need to list the specific ways the plaintiff has been hurt. Judge Davis ruled that many of the statements about Dominion were classic examples of defamation per se—for example, that it had engaged in criminal activity, or conducted its business in dishonest and fraudulent ways.

Dominion Had to Show That the Statements Were "Published" to a Third Party

"Published" is a legal term of art that includes broadcasting statements or posting them online. And publishing statements to a third party just means that the statements were seen or heard by someone other than the subject. You can insult someone one-on-one, but you can't defame them unless at least one other person knows about it.

It makes sense that Fox News didn't really dispute this point, since the statements were seen and heard by millions on the network and on its hosts' social media accounts. But there were actually two Fox defendants in the lawsuit:

• Fox Corporation, which is controlled by Rupert Murdoch and has several subsidiaries including Fox Sports.
• Fox News, which is one of Fox Corporation's subsidiaries.

In general companies are responsible for the actions their employees take while they're on the job. But the rules are a little different when it comes to parent companies' responsibility for the actions of their subsidiaries. In his summary judgment opinion, Judge Davis ruled that the jury would have to decide if Fox Corporation exercised enough control over Fox News and its operations to be responsible for statements published by Fox News. But he later penalized Fox and criticized its lawyers for, among other things, not being straightforward about the extent of Rupert Murdoch's involvement with Fox News.

Dominion Would Have Had to Show That the False Statements Were Made With "Actual Malice"

The most significant issue that Judge Davis left for the jury to decide was whether Fox made the statements (or allowed them to be made by its guests and hosts) with "actual malice." American defamation law has two very different standards for judging defendants' responsibility for defamatory statements:

• A negligence standard applies when a defendant has made statements about private individuals. This basically means that you can be liable for defaming a private person if you should have taken more care to be sure that the statements were true.
• The actual malice standard applies when a defendant has made statements about a public figure (or when the statements deal with a private person's involvement in some public event or controversy). Under this standard, a defamation plaintiff has to show that the defendant made the statements either knowing they were false, or with a reckless disregard as to whether they were true or not.

The actual malice standard was developed to protect people's right to speak and write about public figures and issues of public importance without fear of being sued.

Dominion made several arguments in support of its position that Fox and its employees acted with actual malice. For example, it pointed to text messages and other communications that it obtained during the discovery process. Dominion said that these messages between Fox hosts and executives show that they knew—or at least strongly suspected—that the claims about Dominion weren't true. Broadcasting and posting the accusations despite doubting that they were true is, according to Dominion, proof of actual malice.

Fox denied this characterization of the evidence and argued, among other things, that:

• some of Fox's hosts pushed back when guests made false claims about Dominion
• other hosts—for example, Lou Dobbs—genuinely believed that Dominion engaged in fraud (which means their comments weren't made with actual malice, even if those comments were baseless and factually incorrect), and
• Fox was entitled to report and comment on publicly available evidence of possible election fraud—and that possibility was not as clearly far-fetched as Dominion contends.

Judge Davis ruled that both sides presented factual support for their side of the argument, which meant it would have been up to the jury to decide whether the statements were made with actual malice.