by A $1.6 billion defamation lawsuit against Fox News by Dominion Voting Systems over the network’s coverage of the 2020 presidential election is an attack on the First Amendment, lawyers for the cable news giant argued in a countersuit published Thursday.
Denver-based Dominion, which sells electronic voting hardware and software, is suing both Fox News and its parent company, Fox Corporation. Dominion said some Fox News employees deliberately reinforced false claims by former President Donald Trump’s allies that Dominion changed votes in the 2020 election and that Fox provided guests with a platform to make false and defamatory statements.
In an amended counterclaim, Fox attorneys argue Dominion has advanced “novel defamation theories” and is seeking a “staggering” amount of damages aimed at grabbing headlines, disallowing protected speech and Dominion’s private equity owners Staple Street Capital Partners and to enrich its investors .
“Dominion filed this lawsuit to punish FNN for reporting one of the biggest stories of the day — claims by the incumbent President of the United States and his Vice Presidents that the 2020 election was affected by fraud,” reads the the counterclaim. “The mere fact of these allegations was newsworthy.”
Fox attorneys argue that when voting technology companies disputed the claims made by Trump and his deputies, Fox News aired those denials, while some Fox News anchors offered protected opinion commentary on Trump’s claims.
Fox’s counterclaim is based on New York’s “anti-SLAAP” law. Such laws aim to protect people attempting to exercise their First Amendment rights from intimidation by “strategic lawsuits against public participation,” or SLAPPs.
“According to the Dominion, FNN had a duty not to truthfully report the President’s allegations but to suppress or denounce them as false,” Fox’s attorneys wrote. “Dominion is fundamentally wrong. Freedom of speech and freedom of the press would be illusory if the winning side in a public controversy could sue the press for giving the losing side a forum.”
Fox lawyers say Dominion’s own public relations adviser, Michael Steele of Hamilton Place Strategies, described Trump’s claim about the election as “the biggest issue in the country at this time.” They also argue that the company’s threat of a $1.6 billion judgment will make other media outlets think twice about what they report.
“Dominion cannot possibly suffer damage of this magnitude, let alone such damage, as a result of a single news outlet reporting a story that was reported by media outlets around the world,” Fox’s attorneys wrote. Documents provided as part of the lawsuit show that Dominion has not suffered any economic damage and do not indicate that it lost customers as a result of Fox’s election coverage.
According to Fox, Dominion’s claim of $1.6 billion in enterprise value is 42 times what Staple Street paid in 2018 to acquire 76% of the company. Staple Street, on the other hand, has valued its investment in Dominion at approximately $80 million.
The countersuit also notes that Dominion CEO John Poulos told Staple Street partner and co-founder Hootan Yaghoobzadeh in December 2020 amid media coverage of Trump’s allegations about the election that “no customer cares about the media. It’s just more words from their perspective.”
Supreme Court Justice Eric Davis is scheduled to preside over a trial beginning in mid-April, but attorneys from both sides have asked him to issue summary judgment in their favor, eliminating the need for a jury trial that could stretch for five weeks would.
In a 192-page redacted brief filed Thursday, Dominion said the judge should rule in his favor because “no reasonable juror could rule in Fox’s favor on every element of Dominion’s defamation lawsuit.” Dominion attorneys also claim that no sane juror could rule in favor of Fox’s “neutral reporting” and “fair reporting” defense.
“Recounts and audits conducted by election officials across the United States have repeatedly confirmed the outcome of the election, including specifically that Dominion’s machines accurately counted the votes,” Dominion’s filing reads about the election and its software-rigged votes to count.”
Fox News’ attorneys argue in their summary judgment that the station’s reporting and commentary was not defamatory.
“Even if Dominion could, for the sake of argument, point to a statement that could constitute judicial defamation, this court should grant Fox News’ motion for summary judgment on the independent ground that Dominion lacks clear and convincing evidence that the Relevant persons at Fox News made or published each statement with actual malice,” the attorneys wrote.
Davis ruled last month that he will consider Dominion a public figure for purposes of the defamation lawsuit. This means that Dominion must prove, through a weight of evidence, that the Fox defendants acted with actual malice or reckless disregard for the truth.
Fox Corp’s attorneys Concurred with the brief filed by Fox News while contending that the parent company was independently entitled to summary judgment since Dominion had failed to produce evidence necessary to hold Fox Corporation liable.
“More than a year of discovery has confirmed what Fox Corporation has been saying all along: Neither Rupert, Lachlan Murdoch, nor anyone else at Fox Corporation played any role in the making or publication of any of the statements Dominion is challenging.” the parent company’s lawyers wrote.
