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Fox News execs’ 2020 election outtakes in Dominion brief are media lawyer’s ‘nightmare,’ expert says

Lou Dobbs interviews Sidney Powell on Fox Business

Lou Dobbs interviews Sidney Powell on Fox Business on Dec. 10, 2020 (via Khalil v. Fox, et. al. lawsuit)

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Top Fox News executives, right up to News Corp. CEO Rupert Murdoch, were quoted deriding the same 2020 election conspiracy theories some in their network pushed, in an explosive new legal brief unsealed last week.

Those revelations could prove damaging to Fox in defending a $1.6 billion defamation lawsuit filed by Dominion, one of the two voting machine companies scapegoated to explain Donald Trump’s defeat in the last presidential race.

On the latest episode of Law&Crime’s podcast “Objections: with Adam Klasfeld,” Professor Jeff Kosseff — a prominent First Amendment and cybersecurity scholar and the author of the soon-to-be-released book “Liar in a Crowded Theater” — unpacks why the messages quoted in Dominion’s brief might be the stuff of nightmares for Fox.

“My immediate reaction is this is just my worst nightmare come to life as a media defense lawyer,” Kosseff said on the show.

In the unsealed filing, Murdoch can be seen describing Giuliani’s wild news conference with Sidney Powell announcing their election litigation as “really crazy stuff.”

Fox nonetheless decided to air the conference in its entirety — and lashed out at their then-White House correspondent Kristen Fisher for daring to fact-check it, according to Dominion’s latest filing.

“Fisher received a call from her boss, Bryan Boughton, immediately after in which he ’emphasized that higher-ups at Fox News were also unhappy with it,’ and that Fisher ‘needed to do a better job of — this is a quote — ‘respecting our audience,'” the filing states.

Dominion says that Fisher texted that she was “punished for doing my job.”

The blistering 178-page filing includes scores of quotations like that from the likes of host Tucker Carlson to Fox News president Jay Wallace. In their private moments, Carlson trashed conspiracy theorist lawyer Sidney Powell as a liar and that Wallace unfavorably compared Lou Dobbs to North Korean propaganda, Dominion claims.

In the public sphere, Carlson allegedly discouraged fact-checking election lies and asked to fire a reporter who tweeted a debunking of conspiracy theories about Dominion voting machines.

Dominion says it found Carlson telling Sean Hannity that those tweets were hurting Fox’s bottom line.

“It needs to stop immediately, like tonight,” one of the messages states. “It’s measurably hurting the company. The stock price is down. Not a joke.”

Floored by such messages, Kosseff said: “I’ve never seen anything like it before.”

Kosseff said that such messages can help Dominion meet the high bar of proving actual malice, the standard in defamation law established by the watershed precedent New York Times v. Sullivan.

“You need to show either that […] the defendant knew that they were publishing is false — or at the very least entertained serious doubts as to the statements,” Kosseff said.

For Kosseff, one of the most notable aspects of Dominion’s filing is that it is a motion for summary judgment.

“Usually, it’s the defendant in a defamation case moving for summary judgment, saying there’s no issue of material fact,” the professor noted.

Dominion’s gambit suggests that they believe the evidence that they obtained is so airtight as to not require a trial. That may be optimistic on the voting machine company’s part — unlikely, but not out of the question, the professor says.

Another aspect of the filing that surprised Kosseff was just how much Fox executives seemed to put in writing.

“When I would do newsroom trainings, I would tell editors and reporters or TV producers, ‘You know, it’s really best if you’re having concerns about coverage […] have the conversation in person or over the phone,” Kosseff said. “Try not to do it via email.”

He added that reading the legal brief “left me a little baffled as to why [and] how all of this ended up there.”

Fox News claims Dominion “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’s reply is expected to be filed in court later this month.

For Kosseff, one of the ironies of this development is that it comes at a time when many conservatives are seeking to weaken press freedom protections for defamation law by attacking the actual malice standard.

At least two Supreme Court Justices, Clarence Thomas and Neil Gorsuch, have said that they wanted to revisit it, and Florida Gov. Ron DeSantis (R) recently proposed a law that would chip away at it as a defense.

“The irony in all of this is that the defendants that those changes would hurt the most would be Fox and Newsmax and One America,” Kosseff noted.

All three networks have been sued by Dominion and fellow voting machine company Smartmatic.

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."