Photograph: Sarah Yenesel/EPA
In the months following the 2020 US presidential election, rightwing TV news in America was a wild west, an apparently lawless free-for-all where conspiracy theories about voting machines, ballot-stuffed suitcases and dead Venezuelan leaders were repeated to viewers around the clock .
There seemed to be little consequence for peddling the most outrageous ideas on primetime.
But now, unfortunately for Fox News, One America News Network (OAN), and Newsmax, it turns out that this brave, new world wasn’t free from legal jurisdiction – with the three networks now facing billion-dollar laws as a result of their baseless charges.
Related: Group aims to strip Fox News of ad revenue over ‘fueling next insurrection’
In June, Dominion Voting Systems, which provided voting machines to 28 states, was given the go-ahead
to sue Fox Corpthe parent company of Fox News, in a case that could draw Rupert Murdoch and his son, Lachlan, into the spotlight.
In the $1.6bn lawsuit, Dominion accuses Fox Corp, and the Murdochs specifically, of allowing Fox News to amplify false claims that the voting company had rigged the election for Joe Biden.
Fox Corp had attempted to have the suit dismissed, but a Delaware judge said Dominion had shown adequate evidence for the suit to proceed. Dominion is already suing Fox News, as well as OAN and Newsmax.
“These allegations support a reasonable inference that Rupert and Lachlan Murdoch either knew Dominion had not manipulated the election or at least recklessly disregarded the truth when they allegedly caused Fox News to propagate its claims about Dominion,” Judge Eric Davis
Davis’s ruling is not a guarantee that Fox will be found liable. But the judge made it clear that this isn’t some frivolous attempt by Dominion – and media and legal experts think Fox could be in real trouble.
“Dominion has a very strong case against Fox News – and against OAN for that matter,” said Ciara Torres-Spelliscy, a professor who teaches constitutional law
at Stetson University and a fellow at the Brennan Center for Justicea nonpartisan law and policy institute.
“The reason Dominion is suing is because Fox and other rightwing news outlets repeated vicious lies that Dominion’s voting machines stole the 2020 election from Trump for Biden. But all of these conspiracy theories about Dominion’s machines were just pure bunk, and Fox as a news organization should have known that and not given this aspect of the big lie a megaphone.”
“What’s particularly bad for Fox is [that] Dominion asked them to stop and correct the record in real time, and Fox persisted in spreading misrepresentations about the voting machine company.”
Indeed, in his ruling, Davis noted that “other newspapers under Rupert Murdoch’s control, including the Wall Street Journal and New York Post, condemned President Trump’s claims and urged him to concede defeat”.
In a statement, a Fox News spokesperson said: “Limiting the ability of the press to report freely on the American election process stands in stark contrast to the liberties on which this nation was founded, and we are confident we will prevail in this case, as the first amendment is the foundation of our democracy and freedom of the press must be protected.”
A potential previous in the Dominion v Fox case could be found in a recent case involving Sarah Palin, who
sued the New York Times. Palin claimed the newspaper maliciously damaged her reputation by erroneously linking her campaign rhetoric to a mass shooting. In February a jury sided with the Times, finding that a Times employee had not acted with “actual malice” against a public figure or with “reckless disregard” for the truth – the criteria necessary to prove defamation.
But the Times victory shouldn’t give Fox too much hope, said Torres-Spelliscy.
“In the Palin case, the New York Times quickly corrected the mistake about Palin that had been added while an article was edited,” Torres-Spelliscy said.
“By contrast Fox News kept up the bad behavior and repeatedly told myths about Dominion’s voting machines. This is likely why judges in several of these Dominion defamation cases have not dismissed them.”
Dominion isn’t the only company seeking damages from Fox and its contemporaries.
Smartmatic, an election software company which provided voting software to precisely
one county in the 2020 election but found subjected itself to claims that it was founded “for the specific purpose of elections fixing” by associates of Hugo Chavez, the former president of Venezuela who died in 2013, is suing Fox Corp, Fox News and associates for $2.7bn.
Still, Fox News is the most-watched and arguably most influential cable news channel in the US, and is probably too big to fail.
But that isn’t the case for the smaller rightwing networks OAN and Newsmax, which are also both
being sued by Dominion and Smartmatic – in June, a Delaware judge refused Newsmax’s motion to have the Dominion case dismissed, but did not weigh on whether Newsmax was innocent or guilty.
“I think OAN is going to be wiped out from the litigation costs. Forget about any judgment,” said Angelo Carusone, president and chief executive of
Media Matters for Americawhich monitors rightwing media.
Carusone pointed out that OAN is already struggling to survive, after it was
dropped by the DirecTV cable company – which was reportedly responsible for 90% of OAN’s revenue – in April.
“We’ve started seeing, already, them scaling back programming, they’ve been laying off staff, they’ve been cutting back the number of programs. So it’s pretty clear that they don’t have sufficient resources to weather a protracted litigation.”
Newsmax, which is still carried by DirecTV, is “relatively cash flush” in comparison to OAN, Carusone said – enough to survive a trial, if not to pay the billions of dollars Dominion and Smartmatic are seeking.
The Newsmax booth at the NRA convention in Houston in May. Photograph: Patrick T Fallon/AFP/Getty Images
In a statement, Newsmax said it had “reported on allegations made by President Trump and his surrogates and at no time did we report these allegations were true. We also reported on critics of the Trump claims”.
It added: “The Dominion suit is an assault on a free press and endangers all press outlets if it were to prevail.”
OAN did not respond to a request for comment.
As for Fox, the most significant thing could be if the Murdochs are subjected to discovery – where they and Fox could be forced to hand over documents potentially including communications data – as part of the legal process, Carusone said.
Text messages obtained by the January 6 commission have already revealed that there was communication between
Fox News hosts and White House officials regarding the insurrection – and it seems unlikely that is the only thing that was discussed.
“I think once you start to pull the discovery material, what you’re going to find is there was a lot of communication between the Trump people both internally and externally about pushing very specific lies and narratives,” Carusone said.
While Fox is more financially comfortable than OAN and NewsMax, it is not invulnerable. Fox News is due to renegotiate its contracts with cable providers at the end of this year, and Carusone said cable companies could use the lawsuit to drive down prices.
The Dominion and Smartmatic cases are likely to drag on for some time, and it remains to be seen how Fox News, OAN and NewsMax will react.
As for the news channels’ conspiratorial claims of election fraud, at least that is one thing that has already been settled.
The courts, the Department of justice, election officials
have investigated and dismissed the charges, as has the US Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency.
“The November 3 election was the most secure in American history,” the agency
said in a statement in 2020.
“While we know there are many unfounded claims and opportunities for misinformation about the process of our elections, we can assure you we have the utmost confidence in the security and integrity of our elections, and you should too.”
William Barr, Trump’s attorney general, put it in rather less sophisticated terms.
The claims of election interference, Barr
told the January 6 committee, were “bullshit”.