When the U.S. Supreme Court under Chief Justice Earl Warren handed down its unanimous decision in New York Times v. Sullivan back in 1964, it established a tough standard that plaintiffs have to meet in defamation lawsuits. Plaintiffs, according to the Warren Court, have to prove “actual malice.” And that is what Dominion Voting Systems is trying to prove in the defamation lawsuits it filed against Fox News, Newsmax TV, One America News (OAN) and others in response to the false claims they promoted about the 2020 presidential election.
After Donald Trump lost the 2020 election to now-President Joe Biden by more than 7 million votes, many far-right MAGA Republicans at Fox News, Newsmax and OAN promoted the false claim that Dominion’s voting equipment was used to help Democrats steal the election — a conspiracy theory that has been repeatedly debunked. Fox News, in response to Dominion’s defamation lawsuit, has maintained that its hosts weren’t saying the claims about Dominion were true, and that they were just asking questions.
Dominion, meanwhile, is trying to show, in its $1.6 billion lawsuit, that hosts at Fox News acted with actual malice and promoted claims they knew were nonsense. And on Wednesday, December 21, attorneys for Dominion pointed to Fox News host Sean Hannity as an example of someone who knew that the Big Lie was a lie but promoted the claims of Trump attorney Sidney Powell anyway. Powell, who is also facing a defamation lawsuit from Dominion, falsely accused Dominion of helping Democrats steal the election from Trump. Another MAGA Republican who made that false claim and is being sued by Dominion is MyPillow CEO Mike Lindell. Dominion has sued former Trump lawyer Rudy Giuliani as well.
Reporting for the New York Times on December 21, journalist Jeremy Peters explains, “On November 30, 2020, Sean Hannity hosted Sidney Powell on his prime-time Fox News program. As she had in many other interviews around that time — on Fox and elsewhere in right-wing media — Ms. Powell, a former federal prosecutor, spun wild conspiracy theories about what she said was ‘corruption all across the country, in countless districts,’ in a plot to steal reelection from the president, Donald J. Trump. At the center of this imagined plot were machines from Dominion Voting Systems, which Ms. Powell claimed ran an algorithm that switched votes for Mr. Trump to votes for Joseph R. Biden Jr. Dominion machines, she insisted, were being used ‘to trash large batches of votes.’”
But when Hannity gave a deposition two years later on Wednesday, December 21, 2022 and was under oath, he admitted, “I did not believe it for one second.”
According to Peters, “The hearing was called to address several issues that need to be resolved before the case heads for a jury trial, which the judge has scheduled to begin in April. Mr. Hannity’s disclosure — along with others that emerged from court on Wednesday about what Fox News executives and hosts really believed as their network became one of the loudest megaphones for lies about the 2020 election — is among the strongest evidence yet to emerge publicly that some Fox employees knew that what they were broadcasting was false.”
Under the New York Times v. Sullivan standard established by the Warren Court 58 years ago, defamation is very difficult to prove. An honest mistake doesn’t fit the definition of defamation — the plaintiff has to show actual malice. Former Alaska Gov. Sarah Palin filed a defamation lawsuit against the Times and lost because Palin and her attorneys couldn’t prove actual malice.
“The high legal standard of proof in defamation cases makes it difficult for a company like Dominion to prevail against a media organization like Fox News,” Peters notes. “Dominion has to persuade a jury that people at Fox were, in effect, saying one thing in private while telling their audience exactly the opposite. And that requires showing a jury convincing evidence that speaks to the state of mind of those who were making the decisions at the network. In Delaware Superior Court on Wednesday, Dominion’s lawyers argued that they had obtained ample evidence to make that case.”
Peters adds, “One lawyer for Dominion said that ‘not a single Fox witness’ so far had produced anything supporting the various false claims about the company that were uttered repeatedly on the network. And in some cases, other high-profile hosts and senior executives echoed Mr. Hannity’s doubts about what Mr. Trump and his allies like Ms. Powell were saying, according to the Dominion lawyer, Stephen Shackelford. This included Meade Cooper, who oversees prime-time programming for Fox News, and the prime-time star Tucker Carlson, Mr. Shackelford said.”
Citing Cooper and Carlson as examples, Shackleford told the court, “Many of the highest-ranking Fox people have admitted under oath that they never believed the Dominion lies.”