“Fox News fulfilled its commitment to inform fully and comment fairly,” the company said in the filing. “Some hosts viewed the president’s claims skeptically; others viewed them hopefully; all recognised them as profoundly newsworthy.”
Fox News said in a statement that “Dominion’s motion for summary judgment takes an extreme and unsupported view of defamation law and rests on an accounting of the facts that has no basis in the record”.
A judge in June 2022 denied Fox Corp’s motion to dismiss, finding Dominion had properly alleged that Rupert and Lachlan Murdoch may have acted with “actual malice” in directing the network to broadcast the conspiracy theory. The judge noted a report that Rupert Murdoch had spoken to Trump a few days after the election “and informed him that he had lost”.
On Thursday, Dominion said internal Fox email and text messages support its claim that the network pivoted to the conspiracy theory to retain and attract viewers who were upset when Fox became the first network on election night to call the vote count in Arizona for Biden.
“Getting creamed by CNN!” Rupert Murdoch wrote to Fox News chief executive Suzanne Scott. “Guess our viewers don’t want to watch it.”
Carlson texted his producer with a warning: “Do the executives understand how much credibility and trust we’ve lost with our audience? We’re playing with fire, for real … an alternative like newsmax could be devastating to us.”
That’s when Maria Bartiromo started hosting Powell, one of the architects of the conspiracy theory, despite receiving emails from the attorney that cited just one source for her theory – someone who explained that she gets her information from experiencing something “like time-travel in a semi-conscious state,” allowing her to “see what others don’t see, and hear what others don’t hear,” according to the filing.
“At her deposition, Bartiromo admitted that this email is ‘not evidence’ for Powell’s claims, and indeed was ‘nonsense’ and ‘inherently unreliable,’ ” Dominion said in the filing.
Murdoch weighed in on the conspiracy theory as he watched an unhinged November 19, 2020, press conference by Powell and then-Trump attorney Rudy Giuliani, who attempted to explain the alleged election scheme.
“Watching Giuliani!” Murdoch, who at times attended twice-daily editorial meetings, said in the subject heading of an email. “Really crazy stuff,” he wrote. “And damaging.”
Murdoch on January 5, 2021, told Scott that there had been suggestions that the network’s prime-time coverage should indicate that “the election is over and Joe Biden won” and that such a statement “would go a long way to stop the Trump myth that the election was stolen.” That didn’t happen.
“Despite the internal recognition that the election was over, Fox did not retract its claims about Dominion,” the voting-machine company said in the filing. “Instead, it kept defaming Dominion. To this day, Fox has never retracted the false statements it broadcast about Dominion.”
Fox News host Dana Perino described the conspiracy theory in texts and emails at the time as “total bs,” “insane,” and “nonsense,” according to the filing. Chris Stirewalt, who was Fox News politics editor during the election, testified he believed that by November 7, 2020, “there was no way anybody could think that Donald Trump had really won the election.”
Fox News and several of its personalities also face a lawsuit by Smartmatic Corp, a Dominion competitor that was also falsely accused on-air of rigging the election against Trump. A New York appeals court this week upheld a ruling denying Fox’s motion to dismiss the suit and reinstated claims that had been dismissed against Rudy Giuliani and Fox News personality Jeanine Pirro.
Separately on Thursday, Fox News filed new details to a counter-claim against Dominion that accuses the company of violating a New York law against using litigation to chill free speech. Central to that claim is Fox’s contention that Dominion is seeking inflated damages in the case to benefit the company and private equity owner, Staple Street Capital Partners. Evidence gathered in the discovery process backs that up, Fox alleges.
“Dominion could not possibly suffer damages in that amount, let alone suffer such damages because of a single press outlet’s coverage of a story that was reported by media throughout the world. Nor did it,” Fox said. “Documents produced in discovery show that Dominion is in a solid financial position, maintaining substantial cash, carrying no debt, and producing a steady return on investment to Staple Street.”