Fox News is in serious hot water.
That's according to several legal experts who spoke with me this week following Dominion Voting Systems explosive legal filing against the right-wing talk channel, revealing the network's executives and hosts privately blasted the election fraud claims being peddled by Donald Trump's team, despite allowing lies about the 2020 contest to be promoted on its air.
While the legal experts I spoke with cautioned that they would like to see Fox News' formal legal response to the filing, they all indicated in no uncertain terms that the evidence compiled in Dominion's legal filing represents a serious threat to the channel.
"It's a major blow," attorney Floyd Abrams of Pentagon Papers fame told me, adding that the "recent revelations certainly put Fox in a more precarious situation" in defending against the lawsuit on First Amendment grounds.
Rebecca Tushnet, the Frank Stanton Professor of First Amendment Law at Harvard Law School, described Dominion's evidence as a "very strong" filing that "clearly lays out the difference between what Fox was saying publicly and what top people at Fox were privately admitting."
A cache of behind-the-scenes messages included in the legal filing showed Fox Corp chairman Rupert Murdoch called Trump's claims "really crazy stuff," and the cable network's stars — including Tucker Carlson, Sean Hannity, and Laura Ingraham — brutally mock the lies being pushed by the former president's camp asserting that the election was rigged.
It also showed attempts to crack down on fact-checking election lies. On one occasion, Carlson demanded that Fox News White House correspondent Jacqui Heinrich be fired after she fact-checked a Trump tweet pushing election fraud claims.
Tushnet said that in all of her years practicing and teaching law, she had never seen such damning evidence collected in the pre-trial phase of a defamation suit. "I don't recall anything comparable to this," Tushnet said. "Donald Trump seems to be very good at generating unprecedented situations."
David Korzenik, an attorney who teaches First Amendment law and represents a number of media organizations, told me that the filing showed Dominion's case against Fox News has serious teeth.
Korzenik stressed that while the law allows for bias and ratings-seeking behavior by media outlets, it does not allow for the publication of material one knows to be false. The filing, Korzenik said, "certainly puts Fox in the actual malice crosshairs and puts them in real jeopardy."
RonNell Andersen Jones, a professor and media scholar at the University of Utah, described the evidence as "pretty voluminous" and said that she too had never seen evidence like it collected in a high-profile defamation case against an outlet as enormous as Fox.
"This is a pretty staggering brief," Jones said. "Dominion's filing here is unique not just as to the volume of the evidence but also as to the directness of the evidence and the timeline of the evidence."
"This 'out of the horse's mouth' evidence of knowing falsity is not something we often see," Jones added. "When coupled with the compelling storyline that Dominion is telling about motivation — the evidence that at least some key players in the organization were actively looking to advance some election denialism in order to win back viewers who had departed — it makes for a strong actual malice storyline."
In a statement, Fox News accused Dominion of generating "noise and confusion," adding, "the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan."
"Dominion has mischaracterized the record, cherry-picked quotes stripped of key context, and spilled considerable ink on facts that are irrelevant under black-letter principles of defamation law," the network said. "Their 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."
But the attorneys I spoke to said Dominion's filing showed it had built a powerful case against Fox.
"The dream for a plaintiff's attorney is what Dominion claims to have here," Jones said, "smoking-gun internal statements both acknowledging the lie and deciding to forge ahead with perpetuating it."
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