After the 2020 elections, the president of the United States refused to concede his opponent’s victory, which he attributed to systematic fraud on a scale that beggared belief. He presented no evidence to support his outlandish claims, which were rejected by election officials of both parties, judges he had appointed, and his own attorney general.
This was a big story, and Fox News covered it along with many other news outlets. But did Fox merely report what Donald Trump and his representatives were saying, or did it endorse their wild allegations? That is the question posed by the defamation lawsuit that Dominion Voting Systems, which figured prominently in Trump’s conspiracy theory, filed against Fox News in March 2021.
Dominion has to meet the “actual malice” test that the Supreme Court has said the First Amendment requires for defamation claims by public figures. That means it has to prove that Fox executives, producers, and hosts either recklessly disregarded questions about the truth of Trump’s stolen-election fantasy or promoted it even though they knew it was false. Dominion’s latest brief, which it filed today, presents evidence to support both of those inferences.
The brief, which includes redactions that Fox requested, argues that the company’s executives were nervous about alienating Trump and losing his supporters to right-wing competitors such as Newsmax and One America News Network. To support that argument, Dominion cites an email that News Corporation Executive Chairman Rupert Murdoch sent to Fox News CEO Suzanne Scott two weeks after the election.
Murdoch noted a Wall Street Journal story about Newsmax and added: “These people should be watched, if skeptically. Trump will concede eventually [something that still has not happened] and we should concentrate on Georgia, helping any way we can. We don’t want to antagonize Trump further, but [Trump lawyer Rudy] Giuliani [should be] taken with a large grain of salt. Everything at stake here.”
Three days later, Giuliani, joined by Trump campaign lawyers Sidney Powell and Jenna Ellis, held a bizarre press conference that laid bare the lunacy of the president’s election claims. Giuliani and Powell averred that Joe Biden had stolen the election through a “massive fraud” that involved Dominion, tricky voting software, phony ballots, election officials across the country, George Soros, the Clinton Foundation, and “communist money through Venezuela, Cuba, and likely China.” In a text message that day, Murdoch described that baroque tale as “really crazy stuff.”
Other people at Fox took the same view. Internal fact checks conducted in November 2020 deemed the allegations against Dominion “incorrect” and “not evidence of widespread fraud.” On December 1, Fox News reporter Lucas Tomlinson told Bret Baier, Fox’s chief political correspondent, that “these conspiracy theories” were “dangerously insane.” In a deposition, Fox News host Sean Hannity recalled his reaction to the “whole narrative that Sidney was pushing”: “I did not believe it for one second.” Tucker Carlson was similarly dismissive. “Sidney Powell is lying,” he told his producer on November 16.
Carlson reiterated that conclusion two days later in a private text exchange with fellow Fox News host Laura Ingraham. “Sidney Powell is lying by the way,” he wrote. “I caught her. It’s insane.” Ingraham concurred: “Sidney is a complete nut. No one will work with her. Ditto with Rudy.” Carlson added: “It’s unbelievably offensive to me. Our viewers are good people and they believe it.”
The next day, Carlson made his doubts public, albeit in less categorical terms. If what Powell said were true, he said on his show, it would be “the single greatest crime in American history.” But he noted that Powell, despite repeated requests from his staff, had declined to back up her claims with evidence.
Other Fox hosts were more credulous, at least in public. During a November 12 interview with Giuliani, Fox Business host Lou Dobbs lent credence to what Murdoch would call “really crazy stuff” a week later. “It’s stunning,” Dobbs said. “They have no ability to audit meaningfully the votes that are cast because the servers are somewhere else. [It] looks to me like it is…the endgame to a four-and-a-half-year-long effort to overthrow the president of the United States.” Dominion’s brief says Dobbs “continued to broadcast these false charges throughout the week and for nearly a month—until December 10.”
During a Lou Dobbs Tonight interview on November 16, Powell falsely asserted that Smartmatic, another voting technology company she blamed for Biden’s victory, “owns Dominion.” Dobbs replied, “Yes.”
Prior to that interview, Jeff Field and Alex Cooper, senior producers of Lou Dobbs Tonight, had received an email in which a Fox colleague noted that the Associated Press had debunked the claim that Smartmatic owned Dominion. John Fawcett, an associate producer, also had cast doubt on Powell’s credibility, texting colleagues that she seemed to be “doing lsd and cocaine and heroin and shrooms.” But as Dominion’s brief notes, “none of Dobbs’ producers prevented Powell from spouting the lies on air that evening, or corrected her claims in the rebroadcast.”
The Lou Dobbs Tonight team also knew that Carlson had questioned Powell’s account and that Fox contributor Victor Davis Hanson had similar doubts, saying he was “waiting to see some real evidence.” When the Trump campaign disassociated itself from Powell on November 22 (even as Giuliani and Trump continued to press essentially the same claims), Fawcett texted Dobbs, noting that the campaign seemed to be “calling bullshit” on her. Dobbs told Fawcett he did not understand what Powell was “thinking or doing” or “why.” Fawcett suggested that Powell “could be losing her mind,” noting that her story “doesn’t make sense” and adding, “I just don’t think she is verifying anything she is saying.”
Despite “the Dobbs team’s clear awareness that Powell was an unreliable
source making baseless claims,” Dominion says, “Dobbs had Powell on his show yet again on November 24, and Fox chose to broadcast (and rebroadcast ) both the fraud and algorithm lies about Dominion.” Far from challenging Powell’s claims, Dobbs lamented that Americans were not aware of the “electoral fraud that would be perpetrated through electronic voting.” He said he was referring to “these electronic voting companies, including Dominion, prominently Dominion, at least in the suspicions of a lot of Americans.”
Dobbs interviewed Powell again on November 27. Two days before, Fawcett had texted Dobbs, asking if he had read Powell’s election lawsuits, which Fawcett called “complete bs.” Dobbs confirmed that he had read the lawsuits. On December 4, Dominion’s brief says, “Dobbs returned to the subject of Dominion, stating that it is at the center of the stolen election, rhetorically asking his guest Phil Waldron if it is ‘the principal culprit’ and repeating the claim that Dominion used algorithms designed to be inaccurate rather than to be a secure system.”
Five days later, Dobbs and his producers learned that all of Powell’s election lawsuits had been dismissed. That development, Dobbs conceded in a deposition, “affect[ed] her credibility or reliability,” causing him to have “doubts” about her claims. But that did not stop him from interviewing her yet again the next day. “We will gladly put forward your evidence that supports your claim that this was a Cyber Pearl Harbor,” he said, adding that “we have tremendous evidence already.”
Fox News host Maria Bartiromo interviewed Powell on November 8. Powell asserted that a vote-switching “algorithm” developed by Dominion enabled a “massive and coordinated effort to steal this election.” Bartiromo seemed to accept that claim. “We talked about the Dominion software,” she said. “I know that there were voting irregularities. Tell me about that.”
The day before, Powell had shared with Bartiromo an email titled “Election Fraud Info” from an unnamed “source” who summarized the claims about Dominion’s alleged role in stealing the election. The email itself, which Dobbs also received, described those claims as “pretty wackadoodle.” In a deposition, Bartiromo agreed that the “Election Fraud Info” email was “kooky” and “nonsense.”
Dominion notes that other Fox shows, including Hannity, Justice With Judge Jeanine, and Fox & Friends, also gave Powell a platform. Given what the producers and hosts knew or should have known at the time, the company argues, their uncritical treatment of her claims was at least reckless.
Fox, which also faces a defamation lawsuit that Smartmatic filed in February 2021, maintains that it was merely reporting the news. But Dobbs clearly did more than that, and Bartiromo arguably did too.
In contrast with the softball interviews that Dobbs and other hosts conducted, Fox’s news reporters were appropriately skeptical of Trump’s claims early on. After Giuliani et al.’s November 19 press conference, for instance, Fox News White House correspondent Kristin Fisher called it “colorful” but noted it was “light on facts,” adding that “much of what [Giuliani] said was simply not true or has already been thrown out in court.”
In a November 12 tweet, Dominion’s brief notes, Fox reporter Jacqui Heinrich corrected a tweet in which Trump had cited Hannity and Lou Dobbs Tonight to support his claim that Dominion was implicated in election fraud. Quoting “top election infrastructure officials,” Heinrich noted that “there is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.”
Carlson, who a week later would privately declare that “Sidney Powell is lying,” nevertheless took exception to Heinrich’s tweet. “Please get her fired,” he said in a text to Hannity. “It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.”
Hannity, who would later say he “did not believe” Powell’s claims “for a second,” told Carlson he had already complained about Heinrich’s tweet to Scott. The Fox News CEO agreed that Heinrich was out of line. Heinrich “has serious nerve doing this,” Scott said in a text to other Fox executives. “If this gets picked up, viewers are going to be further disgusted.” By the next morning, Dominion notes, “Heinrich had deleted her fact-checking tweet.”