As some people may have heard, Fox News settled the $1.6 billion defamation lawsuit against it filed by Dominion Voting Systems Corporation just days before the trial was set to begin, which promised to be quite embarrassing for the network as some well-known names would be forced to take the stand to “explain” why they peddled election fraud conspiracies they knew to be complete bullshit as "fact."
Fox News agreed to pay Dominion just under $800 million, which Fox executives and its infamous employees rightly believe is a “fair” amount to avoid public revelations far more costly to its already lousy credibility—especially given that the settlement also halted the investigation by a special master into whether Fox News had in good faith complied with the discovery process.
While Fox News was basically giving an “open mike” to absurd election fraud conspiracies, every recount involving Dominion voting machines showed that the counts they generated accurately reflected the vote count. Yet this did not stop Fox News personalities and their “guests” from peddling the hoax that Dominion machines had been deliberately manipulated to change votes in swing states like Arizona and Georgia.
The fact that it just didn't matter to Fox News viewers that there was proof that the 2020 election was not “stolen” demonstrated that the network's "news" coverage brainwashed millions with daily doses of divisive misinformation and outright lies. These lies can of course sound “logical” if you want them to be; it’s the old “you can’t disprove a negative” trick—“Humans did not live on the Moon millions of years ago. Oh yeah? Prove that they didn’t.” To many people, if you can’t “prove” a nonsense statement is false, then it must be “true.”
Fox News's prime-time line-up had so brainwashed its viewers with this kind of nonsense with its election fraud conspiracies that when the "news" anchors began to scorn or ignore the claims on air, many viewers—and Fox's most popular "personalities" peddling the falsehoods—felt "betrayed" by the network. Viewership sank following the 2020 election, and to bring them back, Fox's political "evangelicals" gave lunatics like Sidney Powell, Rudi Giuliani and Mike Lindell a platform to repeat their crazed claims with little or no pushback—and in the cases of Lou Dobbs, Maria Bartiromo and Jeanine Pirro, open support for those claims.
Fox News viewers had been fed clearly false information for so long that they simply did not know any other "reality"—even as the rest of us knew what they were being fed was obvious falsehoods. Fox News’ responsibility for January 6 also cannot be overlooked or “underappreciated” because of what they were doing.
Dominion’s lawsuit filing makes for interesting reading. Powell especially was given an “open mike” and supportive environment from Bartiromo and Dobbs. For example Bartiromo states as “truth” claims that she doesn’t actually know to be true or not—in fact demonstrated to be false by recounts even as she asserted the opposite:
Sidney, we talked about the Dominion software. I know that there were voting irregularities. Tell me about that.
Powell asserts “facts” she clearly has no “proof” actually exist, but claims as true because who is going to disprove it when there are many people who want to believe it?
That’s to put it mildly. The computer glitches could not and should not have happened at all. That is where the fraud took place where they were flipping votes in the computer system or adding votes that did not exist.
Powell’s most important verbal “weapon” was claiming that Dominion machines were allegedly used to “rig” elections in favor of the late Venezuelan president Hugo Chavez here…
Well, I can hardly wait to put forth all the evidence we have collected on Dominion, starting with the fact it was created to produce altered voting results in Venezuela for Hugo Chavez and then shipped internationally to manipulate votes for purchase in other countries, including this one.
…and there:
It was created for the express purpose of being able to alter votes and secure the reelection of Hugo Chavez and then Maduro. They’ve used it in Argentina,” Powell said. “There is an American citizen who has exported it to other countries and it is one huge, huge criminal conspiracy that should be investigated by military intelligence for its national security implications…We have sworn witness testimony of why the software was designed. It was designed to rig elections … We have so much evidence, I feel like it’s coming in through a fire hose.
The credulous Bartiromo could only say “Wow.” She never did ask Powell to provide viewers even a dribble of the “evidence” coming out of that fire hose. This goes on and on. Powell falsely told Dobbs that Smartmatic owned Dominion, and went on to say that
I’ve just gotten some stunning evidence from a firsthand witness, a high-ranking military officer, who was present when Smartmatic was designed in a way that – and I’m going to just read to you some of these statements, if you don’t mind, so I get them exactly right…From the affidavit, (Smartmatic was) ‘designed in a way that the system could change the vote of each voter without being detected. We are just continuing to be inundated by evidence of all the frauds here and every manner and means of fraud you could possibly think of.
As it turned out, Powell’s “evidence” was nothing more than claims made by one or two people working at vote-counting sites who saw “things” they wanted to see, or someone looking through a window “interpreting” what they were seeing without actually knowing what they were looking at. Judges rightly and repeatedly threw out these nonsense fraud claims when Powell presented them in court.
But what was worse was that despite the fact that they knew these claims to be ridiculous, Fox News hosts not only still allowed these claims a “fair” hearing without push back, but as noted in many cases supported them on air. Some, like Dobbs apparently did personally believe election fraud claims, telling Powell
Let me make you an offer, very straightforwardly, We will gladly put forward your evidence that supports your claim that this was a Cyber Pearl Harbor. We have tremendous evidence already … of fraud in this election, but I will be glad to put forward on this broadcast whatever evidence you have, and we’ll be glad to do it immediately.
Of course that evidence was never forthcoming. But that didn’t stop Dobbs releasing these tweets:
Read all about Dominion and Smartmatic voting companies and you’ll soon understand how pervasive this Democrat electoral fraud is, and why there’s no way in the world the 2020 Presidential election was either free or fair.
I think many Americans have given no thought to electoral fraud that would be perpetrated through electronic voting; that is, these machines, these electronic voting companies, including Dominion, prominently Dominion, at least in the suspicions of a lot of Americans. We have technical presentations that prove there is an embedded controller in every Dominion machine, that allows an election supervisor to move votes from one candidate to another.
Jeanine Pirro, of course, was another who simply repeated Powell's and others false claims, not even bothering to verify even the most “essential” assertions were factual:
The President’s lawyers alleging a company called Dominion, which they say started in Venezuela with Cuban money, and with the assistance of Smartmatic software, a backdoor is capable of flipping votes.
Dominion was a competitor—not a business partner—with Smartmatic, and it was founded in Toronto, Canada and has its corporate headquarters in the U.S. Facts simply don’t matter when you have a conspiracy-minded audience to please.
Tucker Carlson was one who asserted behind the scenes that he knew the election fraud claims were “bullshit,” but as Dominion correctly pointed out in its lawsuit, this only made his and his colleagues' crimes worse.
When Mike Lindell proclaimed that “Every outlet in the country, they go, ‘Mike Lindell, there’s no evidence, and he’s making fraudulent statements.’ No. I have the evidence. I dare people to put it on. I dare Dominion to sue me because then it will get out faster. So, this is – you know, they don’t – they don’t want to talk about it,” Carlson on-air agreed that people don’t want to hear the “evidence”—implying that there was such "evidence."
In its court filings, Dominion successfully convinced Judge Eric Davis that the following crimes had been committed and Fox News had no “free speech” defense against:
First, falsity Fox broadcast false information. These lies fall into four categories, each provably false at the time. Fox falsely claimed : (1) Dominion committed election fraud by rigging the 2020 Presidential Election. (2 ) Dominion's software and algorithms manipulated vote counts in the 2020 Presidential Election (3 ) Dominion is owned by a company founded in Venezuela to rig elections for the dictator Hugo Chavez. (4 ) Dominion paid kickbacks to government officials who used its machines in the 2020 Presidential Election.
Second, publication about Dominion. It is legally irrelevant that but not all of the accused statements relate to false charges made by a guest and not a host . Fox is deemed the publisher of every statement those guests aired against Dominion . It is a black - letter rule that one who republishes a libel is subject to liability just as if he had published it originally , even though he attributes the libelous statement to the original publisher , and even though he expressly disavows the truth of the statement. Moreover, liability attaches to all those who share responsibility for the decision to publish the statements. The broadcasts on their face also refer to Dominion and connect Dominion to the lies and the far-fetched conspiracy theories regarding the massive but non - existent fraud that supposedly flipped millions of votes from Trump to Biden.
Third, actual malice. Actual malice requires a showing that those responsible for the publication either knew or recklessly disregarded the truth. Here, literally dozens of Fox employees had responsibility for at least one of the defamatory statements Prevailing on summary judgment requires finding that just one person met the required actual malice standard for each. The evidence demonstrates much more. Each person with responsibility either knew the truth or recklessly disregarded the truth.
Fourth, defamation per se. A statement is per se defamatory ifit ( 1) charges the plaintiff with a serious crime; [or ] (2 ) tends to injure the plaintiff in her or his trade , business or profession." Kasavana v. Vela, 172 AD3d 1042, 1044 (2d Dept 2019). Where a defendant's statements are per se defamatory, the plaintiff need not prove damages to establish liability. Whether particular statements are considered defamatory per se is a question of law. Here, every statement is per se defamatory.
Finally, no affirmative defense protects Fox. Fox's defenses fail on the merits as a matter of law even assuming it has properly preserved them…The neutral report privilege cannot apply if the publisher endorses or distorts the charges or otherwise fails to provide accurate and disinterested reporting.
As damning as anything is the actual malice charge. Carlson knew the election fraud claims were BS, but he was more concerned about his and prime-time colleagues “reputations” and "credibility" in light of the “straight news” anchor reporting:
We devote our lives to building an audience and they let Chris Wallace and Leland fucking Vittert wreck it.
Laura Ingraham joined in by complaining that “We are officially working for an organization that hates us.” But what they chose to do was to “mollify” Trump’s fans to maintain ratings, and this came at the expense of what most of those on Fox News knew to be factual. Carlson himself was aware of the power of Trump and its danger to a fact-based reality:
I hate him passionately … What he’s good at is destroying things. He’s the undisputed world champion of that. He could easily destroy us if we play it wrong, We’re all pretending we’ve got a lot to show for it, because admitting what a disaster it’s been is too tough to digest. But come on. There really isn’t an upside to Trump.
Yet even as Carlson was disparaging Trump and pooh-poohing the claims made by Powell and Lin Wood, he was willing to give them a “hearing” because there was “no doubt there was fraud in the election.” What made him particularly “angry” was not necessarily that there was no evidence of "fraud," but that “Trump and Lin and Powell have so discredited their own case, and the rest of us to some extent, that it’s infuriating. Absolutely enrages me.”
Carlson hoped that “Once he’s out (meaning Trump), he becomes incalculably less powerful, even in the minds of his supporters. He’s a demonic force, a destroyer. But he’s not going to destroy us. I’ve been thinking about this every day for four years.” He was wrong, of course, as Trump has insured that he would not quietly walk into twilight dark.
Meanwhile,
Rupert Murdoch was so fearful of a “Trump explosion” that after Fox News’ “Decision
Desk” called Arizona for Joe Biden he exclaimed to a former New York Post
editor that he hoped they were proved “wrong.” And he also encouraged the dissemination
of false claims on air after election day for ratings, until January 6, when to save the network from being seen as culpable he wrote in a memo
Trump insisting on the election being stolen and convincing 25 percent of Americans was a huge disservice to the country. Pretty much a crime. Inevitable it blew up Jan. 6th. Best we don’t mention his name unless essential and certainly don’t support him. We have to respect people of principle and if it comes to the Senate, don’t take sides. I know he is being over-demonized, but he brought it on himself.
Yet it was in the end up to the “power three” at the network—Carlson, Ingraham and Sean Hannity who had in the words of Ingraham “enormous power…more power than we know or exercise.” That is one “scary” thought, and indicative of their power to completely brainwash and shape “reality” even when they themselves know it to be a false reality, if only behind the scenes.
In desperation mode after losing viewers to Newsmax and One America News who were still gleefully peddling election fraud conspiracies, Fox News executives lamented that “Fox News is facing a brand crisis” and “open revolt” by those in the audience who had come to expect Fox News to be something other than “fair and balanced”—more like a mountain sitting atop one side of a seesaw and a mole hill on the other. It was feared by one executive that “precipitous decline in Fox’s favorability among our core audience” posed “lasting damage to the Fox News brand unless effectively addressed soon.”
And before January 6 when the most defamatory claims were being made, that of course was to give voice to election fraud conspiracies no matter how ludicrous. Bartiromo was perhaps the worst of them. She told Steve Bannon that “I want to see massive fraud exposed” and her producer, Abby Grossberg, admitted that “Our audience doesn’t want to hear about a peaceful transition.” Interestingly, Grossberg has since complained that she and Bartiromo were being "set-up" as “patsies” to take most of the blame, despite the fact that they were the worst perpetrators of defamation.
Given all this evidence, it was not a difficult decision for the judge to rule that Fox News’ on-air support for false election fraud conspiracies constituted either factual assertions or "mixed opinion.” This meant that their statements could not be defended as merely “opinion,” but were put forward as “fact.” As seen in the on-air statements, it was clear that information given didn’t merely “imply” that Dominion might be “guilty,” but that it was “guilty.” Accusations of criminal activity, wrote the judge, were not protected speech under the Constitution.
To the bitter end, Fox News continued to claim that “This case is and always has been about the First Amendment protections of the media’s absolute right to cover the news. Fox will continue to fiercely advocate for the rights of free speech and a free press as we move into the next phase of these proceedings.”
But in the end Fox News knew that the evidence to be heard in court would expose this as pure hypocrisy, and likely irrevocably damage its “brand.” After weeks of discussion it finally found an amount of money that it could “settle” with. While admitting that the network “erred,” it nonetheless was not required to issue an on-air retraction of all the lies they have told and continue to tell its viewers. Yes, still “free” to tell dangerous lies, the kind they told that helped lead to the January 6 insurrection.
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