For weeks Fox News supported the absurd lies against Dominion Voting Machines advanced by Sidney Powell, Lin Wood, Rudy Giuliani, and other members of the now harpooned “Kraken” Trump legal team.  The lies are too innumerable, and often off the charts crazy, to go into.  Things have not gone well for the Team Kraken.  They were harshly sanctioned by the courts and their motion to dismiss Dominion’s separate defamation suit against them was resoundingly defeated.

For its part, Fox News was also sued by Dominion and it advanced its own motion to dismiss the case.  Fox was able to advance arguments related to its being alleged news media that were unavailable to the Krakens. In particular, Fox argued that its “reporting” was protected by the “Neutral Reportage,” “Fair Report,” and “opinion” defenses against defamation.  Fox also argued that the Dominion complaint did not allege facts supporting an inference of actual malice.  

Neutral Reportage

The Neutral Reportage privilege allows reporting even when the journalist has serious doubt as to the report’s truth but “believes, reasonably and in good faith, that his report accurately conveys the charges made.” The court first rejects dismissal on this grounds because the privilege has never been held to exist in this jurisdiction.  

However, the court hold that the “neutral reportage defense would not warrant dismissal here even if the defense were available” because the privileges requires “that the defendant accurately and dispassionately reported the newsworthy event.”  The judge found that Dominion’s allegations support “the reasonable inference that Fox’s reporting was not accurate or dispassionate.”

Fair Report

This privilege allows a journalist to provide “a fair and true report of any judicial proceeding.”  Thus, if someone is sued for rape, for example, a journalist who accurately reports on the charges as filed in the lawsuit is shielded from defamation liability even if it turns out the allegation was false.  

The judge rejected this as a basis for dismissal because there was no judicial proceeding at the time to report on and because Fox’s reporting was not fair and true.  “The Complaint supports a reasonable inference that Fox repeatedly misstated election fraud allegations to defame Dominion.”

Opinion

Defamation requires a misstatement of fact, and not opinion. Thus, if I state a certain movie sucked that is opinion that cannot be defamatory no matter how good many others regard the movie.  The judge found that “Fox’s statements were not opinions” but were rather assertions, however false, of fact.  

Malice

As a public figure Dominion most prove the false statements advanced by Fox were made with actual malice.  At this stage the facts asserted in Dominion’s complaint are assumed to be true. However, it is not sufficient for Dominion to simply state that it alleges Fox acted with actual malice as that is a conclusion, not a fact.  Rather, Dominion must allege sufficient specific facts that if found to be true would establish actual malice.  Dominion must allege facts that show Fox published “with knowledge that it was false or with reckless disregard of whether it was false or not.” 

The judge found Dominion sufficiently alleged such facts by alleging that:

1. Fox was told by the DOJ, election experts and Dominion itself that the allegations were false, with extensive evidence supporting that presented to Fox at the time.

2. Some of Fox’s journalists openly disclaimed the fraud allegations even as other pushed them.

The judge’s refusal to dismiss does not mean Dominion wins.  It still has prove its case with evidence.  At issue was whether Dominion’s complaint was sufficiently well pled to proceed and the judge ruled it was. As a result it will proceed.  

It will proceed to discovery where Dominion will have access to a treasure trove of Fox’s internal documents regarding what it knew and when, and whether it coordinated these lies with others, to include those on Trump’s team.  It means the various personalities involved, who told these lies, will be deposed and compelled to defend what they did under oath and cross examination.  

Good luck with that.  

You can read the judge’s decision HERE.

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This is a Creative Commons article. The original version of this article appeared here.

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