The most recent burp from Faux lawsuitlandia is comments by the owner Rupert Murdoch. He knew Faux was broadcasting lies about the 2020 election. But given the near-impossibility of proving defamation in situations like this, it is not clear if Murdoch’s comments will make any difference. After Dominion released a redacted version of the 192 page lawsuit a few weeks ago, legal experts and commentators believed the case was a slam dunk win for Dominion. Now, some of the current commentary is more cautious. A WaPo analysis comments:
As The Post and other news outlets have reported, Fox Corp. patriarch Rupert Murdoch admitted in a deposition that Fox News hosts “were endorsing” lies that the 2020 presidential election was stolen from President Donald Trump. “Not Fox,” Murdoch testified on the media outlet he founded. “But maybe Lou Dobbs, maybe Maria [Bartiromo], as commentators.” He conceded similar activity by host Jeanine Pirro and “a bit” by host Sean Hannity.The analysis goes on to point out that Faux is arguing that Dominion tried to establish that 16 specific employees had skeptical views about stolen election claims but failed to identify anyone who was responsible for making the statements. In essence, what Faux is arguing is (i) no executive in the Faux corporation was responsible for defamation, and (ii) executives’ state of mind is irrelevant if they weren’t personally involved in the allegedly defamatory broadcasts.
Murdoch’s comments are 1) true, as anyone who watched Fox News after the election can attest; 2) scandalous, considering that Murdoch could well have acted to stop such atrocities; and 3) likely to have a marginal impact on Dominion Voting Systems’ defamation lawsuit against Fox News.
U.S. defamation law requires a lot more than an embarrassing post hoc admission by a network mogul.to prevail in court, Dominion needs to prove that Fox News proceeded with actual malice, meaning that Fox knew the falsity of statements it was broadcasting or made them with reckless disregard of their truth. And those requirements aren’t the only hurdles. Per the 1964 case New York Times v. Sullivan — which instituted the legal standard of “actual malice” — a plaintiff like Dominion must bring "home” the evidence, linking the required state of mind to the people responsible for the challenged statements.It’s an arduous legal undertaking. In a mid-February filing, Dominion devotes more than 70 pages to the considerations needed to establish actual malice. .... A separate section explores the of role of executives and producers responsible for various Fox News programs, rummaging through their states of mind during allegedly defamatory broadcasts.
In its own filing Monday, Fox News argues that Dominion’s approach to imputing “actual malice” bears little relation to legal standards. “Dominion tries to distract from its evidentiary deficiencies by cherrypicking anything it can find from any corner of the Fox News organization that shows that anyone at Fox News doubted or disbelieved the President’s allegations,” reads the brief. “From there, it posits that ‘Fox’ writ large—not the specific person(s) at Fox News responsible for each statement—‘knew’ that that specific statement was false.”
I do not know if the Faux defense tactic is a red herring diversion for the point that defamatory statements were knowingly made on air by program hosts, not by executives. The show hosts certainly had plenty of malice in them when they asserted their lies on air. So why focus on the executives? One expert suggested there is no court decision on whether the executives’ state of mind is relevant. I presume that Faux has hired about the best lawyers that money can buy. Maybe they can make it relevant.
Maybe this legal tactic of proving intent in the minds of executives will allow Faux to weasel off the hook. I firmly believe that Dominion was defamed by knowing Faux lies, but that is just a non-binding personal opinion. I just do not know how this lawsuit will play out where it counts, i.e., in court.
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