[Above: author Eric Boehlert talks with Stephanie Miller about Fox's legal troubles. -- eds.]
Published with permission of PRESS RUN, Eric Boehlert’s must-read media newsletter. Subscribe here.
Rupert Murdoch for years has enjoyed a Trump-like ability to avoid responsibility for the avalanche of lies he promotes. That all may be changing thanks to a pair of billion-dollar defamation lawsuits surrounding Trump’s Big Lie campaign — Murdoch appears powerless to stop the looming legal reckoning.
This week, Justice David Cohen of State Supreme Court in Manhattan issued a stinging rebuke of Fox News. Denying the network’s attempt to dismiss a $2.7 billion lawsuit filed by Smartmatic, the election technology company that Fox smeared as part of Trump’s Big Lie offensive following the 2020 campaign, Cohen waved off Murdoch’s attorneys.
“Even assuming that Fox News did not intentionally allow this false narrative to be broadcasted, there is a substantial basis for plaintiffs’ claim that, at a minimum, Fox News turned a blind eye to a litany of outrageous claims about plaintiffs, unprecedented in the history of American elections, so inherently improbable that it evinced a reckless disregard for the truth,” Cohen wrote in his 61-page opinion. The judge repeatedly signaled that the lawsuit can proceed because there’s a reasonable chance that a jury would find Fox guilty of defamation.
The finding comes just three months after a judge in Delaware issued an identical ruling in another defamation lawsuit against Fox News, this one seeking $1.6 billion in damages. That one was brought by Dominion Voting Systems, which claimed Murdoch’s network smeared the election software company by casting it as a central villain in the GOP’s “rigged” charade.
“Fox possessed countervailing evidence of election fraud from the Department of Justice, election experts, and Dominion at the time it had been making its statements,” the judge wrote. “The fact that, despite this evidence, Fox continued to publish its allegations against Dominion, suggests Fox knew the allegations were probably false.”
For years, Fox News has gotten away with blatantly lying and slandering people, most often Democrats, and have paid almost no price for it. The reason Smartmatic and Dominion are having success in court is because they are businesses, not individuals, and they’re not “public figures.” If they were, it would be extremely difficult, under U.S. legal precedent, to prove they were defamed. They are both easily able to document how their brands have been damaged, and the amount of business they have lost, thanks to Fox smears.
What’s so damning for Murdoch’s legal team is that the facts of the recent Smartmatic case are not in dispute. That’s because Fox News defamed the company in plain view, repeatedly, on national television, alleging the company’s software switched California votes in the 2016 election, switched votes in Michigan in 2020, and did the same thing in overseas elections, among many wild and false allegations.
Because the facts are not in question, the best Murdoch’s lawyers could do in court was claim that the voting lies that aired almost nonstop did not constitute defamation because there’s no proof they were aired out of malice. Instead, Fox was just covering a big story and including lots of voices.
“When a sitting President and his surrogates claim an election was rigged, the public has a right to know what they are claiming, full stop,” Murdoch lawyers argued.
The judge rejected that defense, without reservation. “This Court finds that plaintiffs have pleaded facts sufficient to allow a jury to infer that Fox News acted with actual malice, since it conceivably had a “high degree of awareness of falsity” or “serious doubts as to the truth” of the statements made.” He added, “Since Fox News allowed allegedly defamatory statements about [Smartmatic] to be repeated on its network, a jury may therefore find that it acted with intent or reckless disregard of the truth.”
The Smartmatic lawsuit can now proceed to discovery, which means it’s likely Murdoch will try to settle, in part because Smartmatic wants access to emails from Murdoch to his top executives to confirm the likelihood they knew the “rigged” allegations were false.
In 2020, Fox News agreed to pay millions of dollars to the family of a murdered Democratic National Committee staff member, after the network had repeatedly hyped a false claim that the young staffer, Seth Rich, was involved in leaking D.N.C. emails during the 2016 presidential campaign. (Russian hacked the emails.)
The settlement came just before key hosts Lou Dobbs and Sean Hannity were set to be deposed. Reaching an out-of-court agreement with Smartmatic will cost Murdoch a fortune considering the strength of the company’s case. Then double that with the Dominion lawsuit.
The irony is that in the days right after the 2020 election, Fox News initially resisted echoing Trump’s wild claims about a stolen election.
When Kayleigh McEnany held a White House press conference to double down on allegations of fraud, illegal voting, and a rigged election, Fox News host Neil Cavuto cut away from the event: “Whoa, whoa, whoa – I just think we have to be very clear. She’s charging the other side as welcoming fraud and welcoming illegal voting. Unless she has more details to back that up, I can’t in good countenance continue showing you this."
That right-wing void was quickly filled by players like NewsMax and OAN. The Trump sycophants rushed in and eagerly became the home of “rigged” propaganda. As their audience mushroomed, Fox took note. Refusing to let itself be outflanked on the fringe-right, the network embraced the Big Lie.
Now Murdoch’s going to pay a very high price.
Published with permission of PRESS RUN, Eric Boehlert’s must-read media newsletter. Subscribe here.
