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Rupert Murdoch’s deposition in $1.6 billion defamation case is ‘a nightmare’ for Fox News, legal experts say

First Amendment scholars say defamation case against Fox News is “unusually strong.”


Rupert Murdoch’s statements under oath that Fox News could have halted lies about the 2020 election but failed to do so are “a nightmare” for Fox News as it battles an unprecedented $1.6 billion defamation lawsuit from Dominion Voting Systems, legal experts told Grid.

Murdoch, the chairman of Fox News owner News Corp., conceded in a deposition that the news channel’s hosts endorsed falsehoods about the 2020 presidential election and that he had the power to stop them from being broadcast, according to court records released this week.

“I could have,” Murdoch said. “But I didn’t.”

In filings released earlier this year, Dominion cited a corpus of texts and emails in which Tucker Carlson, Sean Hannity and other Fox News personalities and executives acknowledged that they were featuring guests who were likely to spread election falsehoods. In its suit against the outlet, Dominion Voting Systems alleges Fox News recklessly and repeatedly broadcast claims about the 2020 election it knew were false. Murdoch’s statements under oath bolster those claims by the plaintiff, legal experts said.

“It’s an unusually strong plaintiff’s case,” said Floyd Abrams, a noted First Amendment lawyer who represented the New York Times in the landmark Pentagon Papers case.

“A nightmare for Fox”

“When you write about public people and what you say is false, the party suing has to show that it was knowingly false — or said with what the Supreme Court has called a ‘high degree of awareness of probable falsity,’” Abrams said. “So on that front, it’s helpful the more evidence there is that people around Fox — let alone the No. 1 person — also, at least, was troubled and then some by what Fox was saying.”

The case was filed in the Superior Court of the State of Delaware, where Dominion is officially incorporated, and is currently set to go to trial in April.

“I mean, it’s a nightmare for Fox,” John Culhane, a professor at Widener University Delaware Law School, said of Murdoch’s deposition. “He basically said he knew that all of this election fraud stuff was nonsense. And he also said he could have stopped it. And he didn’t.”

While the case is still for a jury to decide, Culhane said he has never seen such strong evidence in a defamation case.

Murdoch’s answers under oath “add context to the picture of an institution apparently unwilling to rein in on-screen talent despite what they knew behind the scenes,” said Rebecca Tushnet, the Frank Stanton professor of the First Amendment at Harvard Law School.

Fox News has denied wrongdoing and claims that it has a First Amendment right to broadcast the views of its guests.

“Fox’s defense is essentially that only the actual speakers could have the necessary ‘actual malice,’ so Fox is trying to disaggregate all the different statements and avoid responsibility as an institution,” Tushnet said.

Fox’s legal argument was a Trump target

Experts noted that Fox News is using a First Amendment defense that Donald Trump — whose false election claims are at stake in the case — sought to weaken as president.

Trump argued throughout much of his presidency that the country needed to alter its libel laws in order to make it easier to bring defamation cases.

“We are going to take a strong look at our country’s libel laws so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts,” Trump said in 2018, even though libel law has been established through case law and there are no federal libel statutes.

“In recent years, some conservatives have criticized the rigorous First Amendment protections that prevent many speakers from being held liable for many falsehoods,” Tushnet said. “Fox’s only real hope is to use those rigorous protections.”

Suit’s unprecedented significance

“The case is a massively important one,” said RonNell Andersen Jones, a professor at the University of Utah School of Law. “Not just because it sets forth more evidence of knowing falsity than most experts in the area are accustomed to seeing in a major media case — but because it tests the ability of defamation law to act as a tool for remedying wider societal disinformation and illustrates the tension between that goal and the First Amendment’s goal of preserving vibrant freedom of speech.”

As Dominion lays out its evidence against Fox News, the network’s position is looking increasingly difficult to defend, experts told Grid.

“They’re mounting a First Amendment defense. And they’re saying, ‘Look, we’re just trying to air all different points of view,’” Culhane said. “But the evidence seems strong that they were giving airtime to people that they knew — or, recklessly, should have known — were really going to espouse, basically, nonsense.”

Abrams said if Fox were to lose the case, it would simply be an application of well-established First Amendment law. The Supreme Court has gone a long way toward affording protection for the press, he said, but if a plaintiff can meet the difficult burdens that it has, the law will be implemented.

“I don’t view this as a threat to the First Amendment,” Abrams said. “In fact, I view it as a vindication of the law as established by the Supreme Court [in 1964] in the New York Times v. Sullivan case, which did provide the press with quite a bit more protection. Even when they get something wrong about a public person — so long as it’s a mistake, not a knowing falsehood, or not something where they were on notice that it was false. It’s a ‘state of mind’ test. And that’s why Murdoch is important.

“Because if you want the state of mind of Fox, certainly the state of mind of Mr. Murdoch himself is relevant.”

An earlier version of this article misspelled Sean Hannity's name. This version has been corrected.

Thanks to Lillian Barkley for copy editing this article.

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