Dominion Sues Fox News Network: Why This Case Is Different

Dominion Voting Systems has already sued a number of individuals for defamation, including attorney Sidney Powell and My Pillow’s Mike Lindell.  These lawsuits all concern post-election statements that questioned the integrity of Dominion’s products and how manipulation affected the presidential election. Today, they also sued Fox News Network (FOX) for $1.6 billion.

What makes this case different?

When you sue an individual for defamation, you are maintaining that the person knowingly made false statements about you (or that the statements were made with reckless disregard for the truth), that they were believable to the audience, and that you can trace your damages to the statements they made.

The defense that individuals offer, even assuming that their statements were wrong, often hinge on the credibility of the person offering the opinion. Remember, for example, that a prior defamation case against Tucker Carlson was thrown out because he was a pundit and not a journalist. As his attorney stated: “No reasonable person” believes his statements to be factual.

Similarly, in the current defamation case against Sidney Powell, her lawyer’s motion to dismiss argued against her own credibility, explaining that much of what she said was (and was understood to be) overstatement and hyperbole. Again, no reasonable person would take what she said at face value.

News organizations are held to a different standard. It is expected that what they report as “news” will be accurately reported. News organizations are therefore generally careful to cover themselves from making false statements by using weasel words in their reporting. That is why their reporting of ongoing investigations so often uses the words “alleged” or “allegedly.” At times it may seem ridiculous to hear news reports talk about an “alleged shooter” when there is video of him, but this is the level of care news organizations take to ensure that they are not misrepresenting facts.

In a splendid move, the Dominion lawsuit against FOX “accuses” them of being a reputable news organization. Dominion notes that FOX has millions of regular viewers and reaches them through a vast variety of media. And, as a huge for-profit company, FOX’s primary concern is its financial bottom line.

Dominion further suggests that FOX, which once touted itself as conservative news outlet that was “fair and balanced”, morphed into an organization that tied its financial well-being to the adulation of Donald Trump and his most ardent supporters.

Seeing its viewership drop precipitously after FOX called the state of Arizona for Biden, and was chided for it by Trump, Dominion alleges that FOX needed to do something to reengage the faithful. They saw Dominion as an easy target to help promote the concept of election fraud.

In painstaking detail, the complaint shows how a variety of FOX news and opinion shows promoted the allegations by Guiliani, Powell, Lindell and others that accused Dominion of wrongdoing, One result, Dominion says, is that FOX reentered the good graces of Trump, recaptured its viewership, and improved its bottom line. The victim in this scenario was Dominion Voting Systems.

FOX cannot claim ignorance of its actions, according to Dominion. Ninety people within the FOX organization regularly received factual updates from Dominion about the security of its voting systems and the fact that it has no relationship to Smartmatic or Hugo Chavez in Venezuela. Numerous requests for retractions were ignored.

All of these allegations suggest that FOX is being held to a different standard than political pundits or individuals who are engaged in self-promotion. FOX has, according to Dominion, violated a public trust to their detriment.

Reminder: the filing of a lawsuit is just the first step in litigation. As always, Dominion will need to prove their allegations and show that the standards for defamation are met.

Avoiding Being Blind-Sided

 Those who read the 3rd Circuit opinion in the Pennsylvania case will notice that they took the entire hodge podge of arguments in the Trump campaign brief, reorganized it, and then dismantled it. This made me smile because it reminded me of my days doing appellate practice.

An effective appellate lawyer doesn’t just read the opposing arguments and respond to them. This method almost guarantees you will miss something. Instead, the better approach is to first pretend you are on the other side of the case and systematically develop the most effective arguments you can. Only then do you develop your brief. So, yes, you are effectively preparing two briefs, but it ensures that you completely prepared. Besides, it makes organizing your own thoughts much easier and helps to create a clearer picture to present to the judge.

This do-both-sides approach also keeps you from being blindsided during oral argument. That happened to Guiliani when the judge asked what standard of review should apply. He actually didn’t know so made something up. The judges were not impressed.

I remember one oral argument where the appellate court judge asked me if I was familiar with a case that had not been cited in either brief (judges do their own research). I replied that yes I did and proceeded to explain why it didn’t apply in our case. I would have never found the case if I had only been responding to the other brief. [Written November 30, 2020]

Sound and Fury

 Over the next few days, Guiliani and many others will hold public events to claim that the sky is purple with pink polka dots. They are entitled to do that; it’s free speech. And some people will believe them. That’s their right too.

Contrast that, though, with what has happened in court. More than 30 cases in 7 states have had the opportunity to prove that in court. In ALL cases where the question has some up, the lawyers have instead said “This is not a sky case” or voluntarily dropped the allegation. Why? Lawyers like to keep their licenses. They are prohibited from arguing positions that they know are wrong or that they know are not supported by sufficient evidence.

So when you get the breathless media reports of these events, remember the famous quote from Macbeth: “it is a tale told by an idiot, full of sound and fury, signifying nothing.” [Written November 25, 2020]

Rudy Giuliani's Mistakes

 Rudy made mistakes in Federal Court today that would embarrass a first year law student. It was one of the greatest shows of legal incompetence I have ever seen (and I’ve seen a few). His performance would actually be best used as a bar exam question where the test taker is asked to identify all of the errors committed. They were legion.

You know you’re in trouble when the judge, bending over backwards to not call him a blithering idiot, actually says "You should write this down. That's what lawyers do. They write things down." [Written on November 17, 2020]