MyPillow CEO Mike Lindell vs. Fox News: A Judgment on “Limits of Defamation in the First Hour of Elections”

The Supreme Court will not consider a request by myPillow CEO Mike Lindell to prevent the case from moving forward.

In that ruling, Judge Carl Nichols wrote that “in addition to alleging that Lindell’s claims are inherently improbable, that his sources are unreliable, and that he has failed to acknowledge the validity of countervailing evidence, Dominion has alleged numerous instances in which Lindell told audiences to purchase MyPillow products after making his claims of election fraud and providing MyPillow promotional codes related to those theories.”

On November 7, Fox projected the winner of the election to be Biden. “I think it’s nice to be cautious because Fox could have gone first again, just as it did in Arizona,” replied Lachlan Murdoch. “Especially as we are still somewhat exposed on Arizona.”

“Dominion has mischaracterized the record, quotes stripped of context, and spilled ink on facts that are irrelevant under black-letter principles of defamation law,” a spokeswoman for Fox News said.

The judge’s ruling yesterday was significant, since the point of contention on Tuesday is whether Dominion should get the contracts.

Defaming Fox Corp. and the Fox News Critique of Election Fraud: Out of the Horse’s Mouth, Not Just in the News Room

Even so, Fox Corp.’s chief legal officer, Viet Dinh, acknowledged under oath that executives in the corporation’s chain of command have an obligation “to prevent and correct known falsehoods.” (Fox Corp.’s and Fox News’ legal defense is handled by a team of outside lawyers led by Dan Webb, a highly regarded Chicago-based corporate litigator.) Some Fox News journalists found the election-fraud claims to be false. Tucker Carlson was sharply questioning the basis for Sidney Powell on his program. Fox News never corrected the record on all the baseless allegations.

In his exchanges with the judge, Keller drew a line distinguishing between a host or producer “who are sometimes pre-scripting material for the show, that is going to be tethered to a specific channel’s telecast” and a network executive.

He said that the person is going to be far removed from the day to day operations of editorial control. Beyond Scott, the executives whose contracts are being sought also include Jay Wallace, Fox News’ president and executive editor and Meade Cooper, the executive vice president of primetime programming, among others.

Nelson pointed out that a document obtained from Fox was about the daily editorial meeting and said that he was looking at almost all of the executives.

“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.”

Lawyers for Dominion Voting Systems argued Tuesday that its defamation case against Fox News is so strong that a trial isn’t needed, and the judge followed up with some challenging questions for the right-wing outlet during an all-day courtroom clash.

The court filing offered the most vivid picture to date of the chaos that occurred behind the scenes at Fox News when Trump lost and viewers rebelled against it for accurately calling Biden the winner in the election.

Murdoch did not deny that “Fox endorsed at times this false notion of a stolen election” but said, “Not Fox, no.” Not Fox. But maybe Lou Dobbs, maybe Maria [Bartiromo] as commentators.”

Dobbs’ show on Fox Business – in which he routinely promoted baseless conspiracies about the 2020 election – was canceled a few weeks after the January 6 insurrection.

The Correspondence Between The Murdochs And Fox News: The Defamation Case Revisited in the U.S. Senate

Dominion’s legal team asked the court to compel additional testimony from Pirro late last month, arguing that after Fox invoked a reporter’s privilege to shield her from some questions during her deposition. A ruling on whether Pirro must return for questioning has not been made public.

Korzenik stressed that the law allows for bias and ratings-seeking behavior by media outlets, but does not allow 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.”

In Australia, where the Murdoch family now live, there is a seemingly conflicting stance taken by the Fox Corp CEO and Executive Chairman. The Murdochs were accused of being part of an insurrection at the U.S. congress by Trump supporters because of false fraud allegations and the excessive rhetoric before the rally.

Murdoch is accusing a smaller media outlet of defamation. The site has been forced to pay out for highly critical commentary several times previously, but it plans to use the case as a test case for recent changes in libel law in that country. Legal cover for media outlets in Australia is not as high as in the U.S.

The fate of a $1.6 billion defamation lawsuit against Fox News rests in the hands of a plainspoken judge known for his unflinching poker face.

Delaware Superior Court Judge Eric M. Davis has often tried to temper feelings in the case between the broadcasting giant and the voting technology company. Each side repeatedly has accused the other of acting in bad faith.

If he were to get a reputation in culture, it would be Cool Hand Luke, says Josephhurst, a criminal defense lawyer who has argued before Davis but has no involvement with the case. “In court, he doesn’t show any emotion, so I mean that in a good way.”

Comments on Smartmatic’s Decays to Fox News: Rupert Murdoch Accused of Leaked Result of the 2020 Presidential Election

The defamation case by another voting tech company, Smartmatic, against Newsmax is being overseen by Davis.

Like Dominion, Smartmatic was the subject of false claims that its software had switched Trump votes to Joe Biden. Those claims were broadcast on Newsmax, Fox News and elsewhere.

“Smartmatic’s allegations support the inference that Newsmax’s reporting was neither accurate nor disinterested/unbiased,” Davis said.

The professor at Delaware Law School thinks that the judge was not giving any of the Newsmax arguments.

Culhane cautions against drawing too strong a conclusion from Newsmax, but says Davis is “step-by-step” in his approach to the law.

In the heat of the moment, right after Election Day 2020, media magnate Rupert Murdoch knew that the hosts on his prized Fox News Channel were endorsing lies from then-President Donald Trump about election fraud.

Smartmatic also has sued Fox for $2.7 billion, but that suit is not as far along as Dominion’s. A New York state appellate court turned down a motion from Fox News to have the Smartmatic case against it dismissed. The ruling dismissed claims against parent company Fox Corp, saying no cause was stated.

Smartmatic attorney Erik Connolly said it would file an amended complaint that “details the involvement of [Fox Corp. leaders] Rupert Murdoch and Lachlan Murdoch.”

Newsmax’s lawyers cite a legal privilege known as neutral reportage, which allows it to present allegations without adopting them as true in order to give the public a chance to make their own conclusions.

He notes that the First Amendment protects reporters in order to ensure a “robust and unintimidated press.” But he states that it isn’t unlimited. A neutral reportage principle cannot protect a publisher who distorts statements in order to launch a personal attack on a public figure.

The stakes are so high in both cases. Davis doesn’t want to amplify his own profile. (Indeed, his court declined to make a photo of him available for this story.) The Delaware legal bar is known for ensuring an air of comity around proceedings.

In a Feb. 8 court hearing in Dominion’s suit against Fox, Davis apologized to the rival legal teams, saying he had been surprised to re-read an email in which he said he came off as snarky.

He pinned it on his use of a pat phrase. “You know that typical sarcastic thing that judges say?” Davis asked. “‘Tell me if I’m wrong…’ Which means, don’t tell me I’m wrong. It means that I’m making some kind of statement. But that was not the reason I was doing it.

What Fox News’s Top Stars Think about the Flavor and Politics of the Media: The Arizona Call, the Pentagon Papers, the Fox News Investigation, and the Case against Fox News

The network’s top primetime stars – Tucker Carlson, Laura Ingraham and Sean Hannity – texted contemptuously of the claims in group chats, but also denounced colleagues pointing that out publicly or on television.

He called Sidney Powell a bit nuts. Carlson, who famously demanded evidence from Powell on the air, privately used a vulgar epithet for women to describe her. The top network programming executive did not think the shows of Carlson and Hannity were legit sources of news.

The legal filing pointed out how Fox News executives and hosts were worried about losing viewers to Newsmax, a small right-wing talk channel, after the election.

James Goodale, who was the general counsel of the New York Times when they published the Pentagon Papers, tells NPR that it is not a good idea to allow a wholesale inquiry into newsroom decisions. Newsroom decisions should be protected by the First Amendment.

The Arizona call caused pro- Trump viewers to abandon Fox News. And when hosts scrambled to promote Trump’s false claims of fraud, Fox News executives seized on it as a valuable strategy, according to the evidence presented by Dominion, even as at least two of Fox’s corporate directors and a top corporate official took exception.

In multiple instances, Fox News executives and hosts expressed worry over the matter and started to crack down on those at the network who fact-checked election lies. In one case, after White House correspondent Jacqui Heinrich fact-checked a Trump tweet pushing election fraud, Carlson said he wanted her fired.

The person with direct knowledge of the matter told CNN that the hosts tried to get her fired and that she wasn’t aware of it.

Neil Cavuto was attacked by his colleagues at Fox News for pulling his show off the air because of a presentation by White House spokeswoman Kayleigh Mc Enany. (McEnany is now a host on Fox News.)

The next day, Scott wrote to Rupert Murdoch that Fox needed to retain “the audience who loves and trusts us. … [W]e need to make sure they know we aren[‘]t abandoning them.” She told Lachlan Murdoch that the network would highlight our stars and plant flags to show respect for them.

Fox News Stars Tell Far-From-The-Line Claims to the CIO of the Getty Images Network: The Story of a “Trump Election”

Slaven Vlasic ofGetty Images is a photographer, as his picture shows Carolyn Kaster/AP, Alex Brandon/AP, and Michael Cormack/SOPA Images.

Off the air, the network’s stars, producers and executives expressed contempt for those same conspiracies, calling them “mind-blowingly nuts,” “totally off the rails” and “completely bs” – often in far earthier terms.

“It’s remarkable how weak ratings make journalists do bad things,” Bill Sammon, the Washington Managing Editor of the network, wrote in a private letter. Network executives were angry with the hit to Fox News’ brand. There was no apparent concern over the journalistic values of fairness and accuracy, other than a few inquiries from Murdoch.

The company’s controlling owner, a private equity firm, wants to enrich the company and generate headlines by making a ten-figure request for damages, according to the cable network’s attorneys.

Source: https://www.npr.org/2023/02/16/1157558299/fox-news-stars-false-claims-trump-election-2020

The day after the Capitol attacks, President Donald Trump called Fox News to report on the attack and their vetoing of Lou Baker’s show on the air

On the day after the election, just days after the election, Baier sent a text to a friend saying there was no evidence of fraud. None. Allegations – stories. Twitter. Bulls—.”

Sammon declined to speak about his departure, citing the terms of his departure, which was termed a retirement by Fox News.

Donald Trump tried to call into Fox News after his supporters attacked the US Capitol in January 2021, but the network refused to put him on air, according to court documents.

A source familiar with the work of the House select committee said that they knew nothing about the call from Trump.

The panel sought to piece together a near minute-by-minute account of Trump’s movements, actions and phone calls on that day. The committee faced a lot of obstacles, and some of the gaps in the record still exist.

On January 6, after the Capitol came under attack, President Trump tried to get LouBodack’s show on the air.

“But Fox executives vetoed that decision,” Dominion’s filing continued. Why? Not because there is not enough newsworthiness. January 6 was an important event by any measure. The important figure of that day was President Trump.

Yup, Fox hosts and the Murdoch family were OK with discrediting the core engine of America’s democracy — our ability to peacefully and legitimately transfer power — if it would hold their audience and boost their stock.

Haley, Fox News, and the Media: Where Do we stand in Dominion’s First Amendment Defamation? An expert’s opinion

I have never met Haley, but she has a good story to tell, including being the first U.N. ambassador and the daughter of Indian immigrants. Her mother Raj obtained a master’s degree in education and became a public-school teacher after immigrating to South Carolina. Her father, Ajit, earned a doctorate from the University of British Columbia and then taught as a biology professor at Voorhees College for 29 years. On the side, they even opened a clothing boutique.

While the legal experts 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 said, adding that the “recent revelations certainly put Fox in a more precarious situation” in defending against the lawsuit on First Amendment grounds.

A version of this article first appeared in the “Reliable Sources” newsletter. Sign up for the daily digest chronicling the evolving media landscape here.

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.”

Tushnet said she had never seen evidence like that before the trial 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, said that the filing showed Dominion’s case against Fox News has serious teeth.

Jones said it was a pretty staggering brief. “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.”

Murdoch, Dinh, and Scott: Fox News shouldn’t stop talking to Giuliani, or when Joe Biden’s ads go public

“Some of our commentators were endorsing it,,” Murdoch said, according to the filing, when asked about the talk hosts’ on-air positions about the election. In retrospect, he wants us to be stronger in condemning it.

The lawsuit said that the concerted efforts and actions of Fox’s legal team ultimately made Grossberg testify in a way that portrayed the facts in a false light in order to shift blame away from senior Fox News executives.

► Murdoch called Trump bulls**t in an email to New York Post’s Col Allan.

And Dinh was warning Lachlan Murdoch, Scott and a top deputy that “Hannity is getting awfully close to the line with his commentary and guests tonight.” The next day, Rupert Murdoch warned that if Trump refused to concede graciously, “we should watch Sean especially and others don’t sound the same.”

► Murdoch gave Jared Kushner “confidential information” about then-candidate Joe Biden’s ads “along with debate strategy” in 2020, the filing said, offering Trump’s son-in-law “a preview of Biden’s ads before they were public.” At most news organizations, this type of action would result in an investigation and disciplinary measures.

The documents lay bare that the channel’s business model is not based on informing its audience, but rather on feeding them content — even dangerous conspiracy theories — that keeps viewers happy and watching.

Murdoch said that he could not have told Fox News to stop giving airtime to Giuliani. “I could have,” Murdoch said. I didn’t.

“I’m a journalist at heart,” the elder Murdoch, who is just two weeks shy of his 92nd birthday, said in his deposition. “I like being involved in those types of things.”

He had been resolute about defending Fox News’ call of the key state of Arizona for Joe Biden on election night — Nov. 3, 2020. Murdoch was told by the president’s son-in-law that the situation was terrible.

Scott forwarded his recommendation to the top executive. She canceled her show over fears that people will say the election is being fraud, and if she pushes back, it will be a token, according to the filings.

Raj Shah, a senior vice president at Fox Corporation, advised Murdoch, Scott and Dinh on how to get over the strong conservative and viewer backlash to Fox. Positive impressions among viewers of Fox News dropped to the lowest levels we have ever seen after Election Day.

Ryan is an anti- Trump Republican and sits on Fox’s board. He said he told the Murdochs “that Fox News should not be spreading conspiracy theories.” He told them that Fox could no longer support Trump, as a result of the post election period.

“Just inform her,” said Lachlan. Fox News, which called the election correctly, is pivoting as fast as possible. We have to lead our viewers which is [] not as easy as it might seem.”

“This is one of the most devastating depositions that I’ve ever seen,” CNN legal analyst Norm Eisen said Monday. If you go beyond reporting, and your chairman admits there was endorsement, then you are liable under the malice standard.

“The evidence that’s been put into the public sphere so far looks like strong evidence that Fox knew the truth and decided to go with an alternate narrative,” Lidsky says.

“How often do you get ‘smoking gun’ emails that show, first, that persons responsible for the editorial content knew that the accusation was false, and also convincing emails that show the reason Fox reported this was for its own mercenary interests?” says Rutgers University law professor Ronald Chen, an authority on Constitutional and media law.

Murdoch and Scott told one another that they couldn’t confront their viewers with the facts, because that could make them unlikable.

Even with the record set out, some media lawyers think Fox’s attorneys may have been right in predicting a loss that would restrict the media’s freedom.

“To simply say Fox is a bunch of liars – that they shouldn’t be allowed to get away with this and their wild speculations should not be reported and should not be protected – I just think that that is a slippery slope,” says Kirtley, a former executive director of the Reporters Committee for Freedom of the Press.

Brennan argued that Americans need to have the freedom to make mistakes when talking about public officials and politics.

When Fox News Loses Defamation Media: Elena Kagan and The New York Times Reveal a “Massive Shooting”

Two current Supreme Court justices, Neil Gorsuch and Clarence Thomas, have indicated they would be open to making it easier for plaintiffs to prevail in defamation suits. Elena Kagan published musings before she joined the court that suggested the protection for the press might be too strong.

Murphy thinks “actual malice” requires a proof that certain people knew statements they aired were wrong. Murdoch’s sworn statements that he had dismissed the claims of election fraud, and affirmed under oath that his star hosts had nevertheless endorsed them publicly, carries no weight, according to her.

“Anybody would have to acknowledge that what the president and his lawyers were doing was newsworthy in and of itself, regardless of whether the allegations were ultimately going to be anything they could prove,” Murphy says. Journalists consider the safe ground of neutral reporting to be when they tell their audiences what others are saying.

Yet Fox News anchors Bret Baier and Martha MacCallum also were deeply concerned about the loss of viewers and deliberated about how to win them back, evidence uncovered by Dominion’s attorneys and separate reporting by the New York Times’ Peter Baker show.

News outlets are more likely to get apologies and settlements when they lose defamation cases. The two most prominent defamation cases of recent years resulted in divergent outcomes.

The editor of Rolling Stone magazine resigned after the magazine’s cover story about a University of Virginia student’s account of being raped was found to be a lie.

A year ago, The New York Times prevailed against former Alaska Gov. Sarah Palin after an editorial wrongly linked her advertisements from her political action committee to a mass shooting months later.

Source: https://www.npr.org/2023/03/06/1161221798/if-fox-news-loses-defamation-dominion-media

The Fox News Production Lawsuit: A Case Against Sexism in the Workplace Environment at Carlson’s Broadcasting Program

The general rule is that strange cases should be avoided, Goodale says. I would like to hope that we don’t see such a strange case again.

In her lawsuits,Grossberg made allegations about the workplace environment at Fox News, which she said was rife with sexism.

Grossberg said that Fox doesn’t care. Everything is summarized perfectly. They don’t care about their employees … and they don’t care about their viewers.”

The environment was terrible when Grossberg began working on the show. On her first day, she said she learned the show’s workspace was decorated with large photos of then-House Speaker Nancy Pelosi “in a plunging bathing suit revealing her cleavage.”

The lawsuit continued to describe a culture at Carlson’s program in which women were subjected to crude terms and in which jokes about Jewish people were made out in the open. Carlson and some of his staff were named in the lawsuit.

Source: https://www.cnn.com/2023/03/21/media/fox-news-producer-lawsuit/index.html

The Story of Fox News Tonight, When Lou Lou Dobbs and Eric Nelson Were Going to the High Court: The Case for a Right-Winning Network

“It’s constant,” she added. “Ratings are very important to the shows, to the network, and to the hosts. It’s a business and that’s what drives coverage.”

Both sides were in court for a major hearing, where they tried to persuade Delaware Superior Court Judge Eric Davis to to grant “summary judgment” — and decide the case in their favor now, instead of proceeding to a scheduled jury trial next month.

“They made the decision to let it happen,” Nelson said, referring to the litany of baseless claims about the voting company that got airtime on Fox News in late 2020.

Lawyers for the right-wing network argued in a Monday filing that compelling live testimony at a trial will add nothing other than media interest. The trial is not a public relations campaign.

He said one of Fox’s arguments “doesn’t seem to be intellectually honest.” He questioned how Fox News could show Lou Dobbs’ reporting was neutral when he signed many of his posts with a Donald Trump-related slogan.

“It could have been a bigger story that a President who lost an election was making all these unsubstantiated false allegations” about widespread fraud, Davis mused from the bench.

She told the judge that they never did anything to provide viewers with the truth that those allegations were leveled by the sitting President and his lawyers.