Legal commentators following the Dominion Voting Systems defamation case against Fox News have been waiting with some anticipation for the next round of briefings in the dueling motions for summary judgment filed in the case.
Rupert Murdoch, the chairman of the media empire that owns Fox News, had not been deposed in time for his testimony to be included in the first round of briefs. But yesterday, Dominion filed its opposition brief that included the much anticipated testimony from Murdoch.
It didn’t disappoint.
As set out in Dominion’s papers and reported in the major papers, Murdoch has made some truly startling admissions in his testimony. While many of the admissions were not wholly surprising because most of us have long suspected the truth, it is quite another thing to see them laid bare in a transcript.
What was really surprising, and while not central to the case still quite important to our democracy, were admissions by Murdoch about his direct and underhanded assistance to the Trump campaign.
Let’s dive in and wrap all of this in some helpful context.
Key Murdoch admissions.
Here are Murdoch’s key deposition admissions about the case:
- Murdoch seriously doubted the claims of “massive election fraud from the very beginning.”
- Fox News gave a platform to conspiracy peddlers like Mike Lindell in order to make more money because, according to Murdoch, what matters “is not red or blue, it is green.”
- Murdoch had the power to stop Fox News from airing false claims but affirmatively chose not to, saying “I could have. But I did not.”
- Perhaps most importantly, Murdoch admitted that some of the top hosts on Fox News had actively endorsed these false claims on the air.
Many of these admissions support “actual malice” by Fox News.
As I wrote about earlier, the first three key admissions buttress Dominion’s argument that Fox News should be held liable because it acted with “actual malice.” That is the legal standard set out by the Supreme Court in New York Times v. Sullivan for defamation claims against media companies.
A finding of “actual malice” would mean that Fox News acted with knowledge that its statements were false, or at least with reckless disregard for the truth.
As I’ve noted, this is typically a very high bar to meet. But it appears from the evidence, including these new key admissions by Murdoch, that Fox News knew that the stolen election claims were false but continued to put guests on anyway who spread the lie.
Dominion discovered and argued in its new brief that Fox News’ own fact-checking department, called the “Brain Room,” had debunked the charges against Dominion, but Fox kept airing them, truth be damned. The network later fired everyone in the Brain Room.
Murdoch’s damning testimony is consistent with the claim that his network kept airing these crazy conspiracies, which it knew to be false, in order to win back viewers who had fled to more right wing media where they could hear confirmation of these false beliefs.
Remember, as he said: It’s not about “red or blue, it is green.”
Imagine the jury hearing that admission.
The “endorsement” admission is a game changer.
The admission about Fox News hosts endorsing the false claims on the air is in my view a far more critical one for this case. Why so?
Fox News is relying on a broad legal argument that it was merely reporting on “newsworthy” subjects, such as the fact that the ex-president and his top advisers were spouting these wild theories. Fox News seeks a knock-out ruling granting it blanket immunity for having simply discussed and broadcasted newsworthy events.
To get there, Fox is relying on something called the “neutral reportage” defense out of a Second Circuit case called Edwards v. National Audubon Society. First of all, for the law nerds out there, there’s nothing in New York or even First Amendment law generally that would require the trial court to allow that defense.
In fact, as Dominion argues, New York’s highest court was unwilling to approve the “neutral reportage” immunity defense in other contexts, and this judge has shown skepticism from the outset about whether Fox News can even raise it.
But even if the court were to allow the “neutral reportage” defense, it has strict safeguards: The source—think Sidney Powell or Rudy Giuliani here—whose charges are published must be “responsible” and also “prominent”—think My Pillow CEO Mike Lindell, who along with these other hucksters merits a big no—and the party publishing the allegations—and here’s the kicker—must “report accurately and dispassionately without espous[ing] or concur[ring] in the charges.”
Fox News understandably skips past the “responsible” and “prominent” parts of the defense because no one can seriously argue the election deniers they put on the air were actually responsible or prominent. In fact, internal communications prove even Fox News didn’t believe these people should be on the air, describing them as “ludicrous,” “off the rails,” “fucking lunatics,” “kooky,” and “complete bs.”
So Fox News has instead argued that none of that matters because the network never endorsed these views and was just engaged in “neutral reportage.” But that’s not what their own chairman, Rupert Murdoch, admitted.
That portion of his testimony is worth seeing in its entirety:
- Q. You are aware now that Fox did more than simply host these guests and give them a platform; correct?
- A. I think you've shown me some material in support of that.
- Q. In fact, you are now aware that Fox endorsed at times this false notion of a stolen election?
- A. Not Fox, no. Not Fox. But maybe Lou Dobbs, maybe Maria, as commentators.
- Q. We went through Fox hosts Maria Bartiromo, yes?
- A. Yes. C’mon.
- Q. Fox host Jeanine Pirro?
- A. I think so.
- Q. Fox Business host Lou Dobbs?
- A. Oh, a lot.
- Q. Fox host Sean Hannity?
- A. A bit.
- Q. All were in that document; correct?
- A. Yes, they were.
- Q. About Fox endorsing the narrative of a stolen election; correct?
- A. No. Some of our commentators were endorsing it.
- Q. About their endorsement of a stolen election?
- A. Yes. They endorsed.
Murdoch may not have understood the trap the lawyer for Dominion was cleverly laying.
If you’re going to rely on a defense that says you have immunity for “neutral reportage” so long as you didn’t endorse the statements, you trash your own defense by admitting your top hosts actually did endorse it. But Murdoch may not have had a choice; the internal documents he was shown say as much, and there was no good way out of that conclusion.
Still, I can picture the faces of Fox News’ attorneys as he got walked through to that admission.
Murdoch is left trying to argue some of the Fox News hosts endorsed the lies but Fox News itself somehow did not. This is a weak argument.
For starters, what is Fox News if not its very public hosts who drive its ratings and dollars? The company is plainly responsible for the actions of its key spokespersons and agents.
Further, there is plenty of evidence these anchors were only doing what corporate told them to do, which was to win back viewers by keeping the lies going.
The ugliest fact of all.
Buried within Dominion’s opposition brief is a startling new bit of evidence: Murdoch apparently gave Jared Kushner confidential network information about Joe Biden’s ads and his debate strategy.
The Dominion brief cites an exhibit that is still under seal, so we can’t yet see what the exact evidence is on this, but that charge by itself is quite explosive. It is, again, further evidence of what we all know: that Fox News is operating not at all like a news organization but as a direct arm of, and chief propagandist for, the Republican Party.
Imagine if the story were reversed, and it was CNN giving Chelsea Clinton advanced confidential information on Trump ads. The right would have exploded in fury.
We’d never hear the end of it. Today, the left and the mainstream media are so numb to the machinations of Fox News it barely gets a mention.
But this close association has dire consequences for our system.
We see this in action today with Kevin McCarthy’s exclusive arrangement with Tucker Carlson for January 6 footage so that a poisonous, selectively edited narrative about the events of the day can emerge, all to keep Fox News viewers in their counterfactual bubble.
We saw it with the familiarity with which Fox News hosts communicated with the White House through Mark Meadows on the day of the insurrection, calling into serious question whether Fox News was guiding and shaping White House policy all along.
And now it appears there is evidence the collusion among Fox News goes all the way to the top of the organization. This is a developing story and there will be more to it as reporters dig further and exhibits eventually, we hope, are unsealed.
One final note: There is much talk about the huge amount of damages, $1.6 billion with a “b,” Dominion is seeking from the defendants. But there’s also the possibility of punitive damages, to which Dominion has claimed it is entitled.
If a jury were to find Fox News acted with actual malice, that award could be substantially higher once punitive damages are tacked on. Technically speaking, there’s no limit to what a jury could impose for such damages in New York.
We’re a long way off from that, but with these new revelations the network has to consider the possibility it could get hit for a lot more than the reputation damage Fox inflicted on Dominion.