top of page

Fox News or Faux News?

A voting machine company, Dominion Voting Systems, is suing Fox News for $1.6 billion, accusing the media organization of defamation. After the 2020 election, Fox News claimed, on multiple occasions, that Dominion committed election fraud by rigging the election and manipulating vote counts. The case is going to trial in April and may be one of the largest and strongest cases for defamation against a major media organization because of how much evidence Dominion has supporting their prima facie case.

Dominion Voting Systems was founded in 2002 by John Poulos, whose mission was to make elections “accurate, transparent, and accessible.” Over the next twenty years, the business became one of the most rapidly growing technology companies in the United States and the second-largest company of its kind in the country, operating in twenty-eight states. Despite this growth, the controversy at the heart of this lawsuit is ultimately what made Dominion a household name. The company attests that this negative publicity has caused them irreparable harm, for which they seek to recover requisite damages. However, to recover any damages, Dominion must first establish a prima facie case of defamation.

Prima Facie Elements for Defamation Lawsuits

A prima facie case is “a cause of action or defense that is sufficiently established by a party's evidence to justify a verdict in his or her favor, provided such evidence is not rebutted by the other party.” Every prima facie case has different elements a plaintiff must show before a judge or jury can award damages. To establish a prima facie case of defamation, a plaintiff must demonstrate: “1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the reputation of the person or entity who is the subject of the statement.”

In addition to these general requirements, cases involving public figures have a higher burden of proof—plaintiffs must show clear and convincing evidence of actual malice. This means that the defendant must have published the information either knowing it was false, or believing its falsehood was highly likely, suggesting a reckless disregard as to its truthfulness. Public figures include celebrities and “prominent business leaders,” like news media organizations. The reason most public figures can easily defeat a defamation claim is because they have free speech protections under the First Amendment, and it is almost impossible to prove the individual or organization had knowledge of the truthfulness of the information. Here, Dominion must show that Fox News knew the claims of fraud were false or recklessly disregarded the truthfulness of the claims.

Dominion’s Defamation Case

Here, Dominion has collected an unusual amount of evidence showing that Fox News employees knew their statements were false and defamatory, possibly satisfying the malice standard. Dominion’s complaint contends that Fox News falsely blamed the company for former President Donald Trump’s 2020 loss by rigging the presidential election. Dominion also asserts that Fox made defamatory statements, such as claiming that Dominion’s technology manipulated votes, that Dominion is owned by a company founded in Venezuela to rig elections for Hugo Chavez, and that Dominion gave kickbacks to government officials who used their machines in the 2020 election.

Additionally, Dominion claims that “with Fox’s ratings in freefall and Fox viewers fleeing to Newsmax and OAN at then-President Trump’s behest, Fox, through its most prominent on-air personalities, cynically exploited these lies to lure viewers back.” Moreover, Dominion states that, despite Fox being put on specific written notice of the facts, it continued to peddle election lies because it was good for its business. As a result, Dominion alleges that it has “suffered enormous and irreparable economic harm” and that its employees have been stalked, harassed, and even received death threats.

In response, Fox contends that its coverage of the claims against Dominion constituted a newsworthy purpose, and its reports of these allegations were warranted because they came from reputable sources, such as the then-President himself. Rather than arguing that the statements were true, the media organization’s legal team states that “Fox stars relaying them on the air reflected an appropriate journalistic response to stark claims about the functioning of American democracy,” merely reporting on “pending allegations.”

However, new details have emerged. According to recent deposition testimony, Rupert Murdoch, owner and co-chairman of Fox Corp., admitted that some Fox News hosts and commentators endorsed the fraudulent election narrative. When asked if he could have prevented the hosts from bringing more attention to the false claims, Mr. Murdoch said, “I could have. But I didn’t.”

Ultimately, Fox News’ willingness to participate in providing a platform for misinformation can be summed up by Mr. Murdoch’s statement when asked why he continued to allow contributors to make election fraud claims on the channel: “[I]t is not red or blue, it is green.”

What Makes this Case Unusual?

Dominion is uniquely positioned to succeed in one of the largest defamation lawsuits to date. “One just doesn’t see cases like this in defamation,” explained Catherine Ross, constitutional law professor at George Washington University. Through the duration of the discovery process, depositions of top Fox pundits have yielded overwhelming proof that they understood the allegations to be false at the time they aired. Sean Hannity, prominent Fox commentator and host of the Sean Hannity Show, stated in a deposition that he “did not believe [the narrative] for one second.” Still, the news source breathed life into the baseless election-fraud claims, acquiescing to the notions of Trump’s base.

Prominent defamation cases over the past decade have displayed the delicate balance courts try to strike when evaluating party’s interests––on the one hand, people should not have their lives destroyed by false accusations made against them, but on the other, free speech protects an individual's rights to produce commentary without fear of litigation at every turn. In recent years, cases like Depp v. Heard and Alex Jones’s defamation trial have demonstrated that one of the more difficult aspects of these cases concerns the defendant’s mental state and requires an objective quest for the truth. In both cases, the jury had the responsibility of determining what information the parties knew or potentially recklessly disregarded to surpass the malice standard provided to public figures.

The Dominion case represents a potential landmark case, testing “the extent to which lies are considered protected speech.” To some extent, mere fallacies or misrepresentations of fact are inevitable in political discourse and debate. However, while honest inaccuracies have been covered by free speech laws, Fox’s claims—that it dutifully reported on a widely held belief—may fall short of such protections. Further, compelling evidence that the network’s revenue concerns led to “its willingness to air the election conspiracies,” will only strengthen Dominion’s allegations.

*The views expressed in this article do not represent the views of Santa Clara University.


bottom of page