On March 26, 2021, Dominion Voting Systems filed suit against Fox for defamation. The lawsuit, filed in the state of Delaware, seeks more than $1.6 billion in damages. The suit is part of a broader response to former President Trump and his supporters’ claims of election fraud, which Dominion asserts to be false and harmful to the company’s commercial interests and the personal safety of its employees.

Background

Dominion Voting System is a corporation that designs and constructs machines used in elections across the United States. Pertinently, Dominion voting machines were widely used in 28 states during the 2020 presidential election. Following the results of the 2020 election, former President Trump and his supporters began echoing claims of voter fraud and election malfeasance. Despite a lack of evidence of election fraud and repeated denials by election officials, including Trump appointee Attorney General William Barr, Trump, and his supporters continued to levy attacks against the election process on social media and news networks such as Fox News. As such, Dominion believes that Fox’s “false story of election fraud” denigrated the election process, harmed the company’s commercial interests, and encouraged violence and threats against company employees.

Dominion’s suit against Fox does not stand alone; it is one of many suits against Trump and his allies’ claims of voter fraud. Dominion previously sued Rudy Giuliani and Sidney Powell, lawyers for Trump, for $1.3 billion in damages each for the “calculated” and “purposeful” comments designed to “provoke outrage and cause Dominion enormous harm.” Smartmatic, another company that produces and implements voting systems, also sued Fox News for $2.7 billion in defamation damages. Together, these lawsuits are part of a broader effort of companies and civil rights groups to seek damages and disavow former President Trump and his supporters’ claims of voter fraud in the 2020 election.

Delaware Defamation Laws

Dominion’s suit against Fox was filed in the state of Delaware, which defines defamation as a “false statement, either oral or written, communicated to a third party, [that] tends to put the subject in a less than favorable light.” Under Delaware law, a cause of action for defamation requires that:

1. The defendant published or verbally broadcast a false communication of fact;
2. The communication under protest is about the plaintiff;
3. The statement in question caused material or reputational harm to the plaintiff; and
4. The defendant acted either negligently or with actual malice.

It is also important to note that “public figures” in defamation suits must prove that the defendant acted with actual malice under Supreme Court precedent New York Times v. Sullivan. Pursuant to this case, actual malice refers to the defendant’s actual state of mind at the time of publication, and plaintiffs must prove that the defendant(s) “actually knew the information was false or entertained serious doubts as to the truth of his [or her] publication.”

Merits of the Lawsuit

The plaintiffs of the case are likely to successfully prove that the defendant published a false communication of fact, that the communication is about the plaintiff, and that the statement caused material or reputational harm to the plaintiff. As aforementioned, President Trump and his allies have yet to provide evidence to support claims of voter fraud, and numerous officials have disavowed these claims, including Former president Trump’s own Attorney General, William Barr. The communications under litigation are also clearly about the plaintiff, as President Trump’s allies and numerous Fox Personalities such as Sean Hannity have directly named Dominion voting machines in their claims of voter fraud and election malfeasance. The court is also likely to side with Dominion in their claim that the statements presented on Fox News and by Fox personalities caused material or reputational damage. Many high-level executives of Dominion Corporation have received threats in response to their perceived tampering of the election. The company itself has also incurred financial and reputational losses, as election boards, particularly those dominated by President Trump’s supporters’ political allies, have been increasingly wary of purchasing and supporting Dominion’s machines.

However, it is unclear if the plaintiffs will successfully prove that the defendant acted with negligence or actual malice. As aforementioned, public figures in defamation cases must prove that the defendants acted with actual malice. Legal experts have stated that the court is likely to side with Fox in categorizing Dominion Corporation as a public figure, and thus, Dominion must prove Fox acted with actual malice in its claims and statements.

John Goldberg, a Harvard Law Professor and an expert on defamation, states that while Dominion has “a shot against Fox News and the Fox personalities,” proving actual malice would be “harder” than their suits against Rudy Giuliani and Sidney Powell. Dominion asserts in its suit that Fox knew that their claims of election fraud and malfeasance against Dominion were false, thus constituting actual malice and the threshold required for action for public figures in defamation cases. Fox, in response, points to the comments made by its journalists, such as Tucker Carlson and Erin Shawn. In November, Carlson stated that Powell “never sent [them] any evidence, despite a lot of polite requests.” As such, Fox believes that these comments made it clear that Fox did not possess any evidence to support its guests’ and its reporters’ claims of election fraud, which would, if accepted by the court, vacate Dominion’s claims of actual malice and with it, its suit against Fox.

Fox also argues that the suit attacks Fox’s role as an independent news network and, with it, the First Amendment. Paul Clement, Fox’s attorney, wrote in a motion that “[Fox had] simply [been] doing its job” and that its comments and coverage of the former President were “objectively newsworthy.” However, according to Robert Rabin, a Stanford Law professor, there is no “absolute newsworthiness defense” or “defense of republication,” meaning that “anyone who published a defamatory statement without qualification is also subject to a defamation claim.” Thus, though Fox’s ‘newsworthiness’ argument may sway individual jurors, it lacks legal basis and would unlikely hold ground before the court.

All in all, Dominion stands a chance in its case against Fox, but, as in countless other high-profile defamation cases, must successfully prove that Fox acted with actual malice. A key area of contention and argument in Dominion et al. vs. Fox is thus the existence of actual malice or lack thereof.

Implications

Regardless of the outcome of its defamation case, Dominion is unlikely to receive the $1.6 billion demanded in the suit. Even if the court were to side with Dominion in its ruling, Dominion would still have to prove its losses, such as the loss of election contracts, as they are only entitled to the damages they can prove in court. These damages are unlikely to exceed, or even approach, $1.6 billion. Dominion may also be entitled to punitive damages; however, punitive damages are “far more discretionary” and require actual intent to hurt the company, which would be difficult to establish as arguments could be made that such statements were not intended to harm the company itself, but then-president-elect Biden.

Dominion vs. Fox, as well as similar suits against persons and entities such as Sidney Powell and Rudy Giuliani, also mark increasing scrutiny regarding media and individual comments regarding conspiracy theories, and the latest turn of the debate on claims of election fraud and malfeasance in the 2020 election which, thus far, remain unproven. As such, Dominion vs. Fox is an extension of the current debate on unproven claims of election fraud and the extent to which they are protected under the First Amendment.