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How Election Lies, Libel Law Are Key to Fox Defamation Suit

A major defamation lawsuit against Fox News goes to trial Tuesday, carrying the potential to shed additional light on former President Donald Trump’s election lies, reveal more about how the right-leaning network operates and even redefine libel law in the U.S. Here are some things to know about the case. 

The case 

Dominion Voting Systems is suing Fox for $1.6 billion, claiming the news outlet repeatedly aired allegations that the company’s voting machines were rigged to doom Trump’s 2020 reelection campaign while knowing they were untrue. Fox contends that it was reporting newsworthy charges made by supporters of the Republican then-president and is supported legally by libel standards. After a one-day delay that raised the possibility of a last-minute settlement between the litigants, seating of the jury is scheduled to start Tuesday, followed immediately by opening statements.

Election disconnect 

Denver-based Dominion has produced evidence that prominent people at Fox didn’t believe the fraud allegations, even as the network gave Trump’s allies airtime to repeat them. Multiple staffers texted and emailed in disbelief as Trump latched onto increasingly tenuous claims of being robbed by voter fraud. Fox’s Sean Hannity said in a deposition that he did not believe the fraud claims “for one second” but wanted to give accusers the chance to produce evidence. Fox founder Rupert Murdoch, questioned under oath, agreed the 2020 election, won by Democrat Joe Biden, was free and fair: “The election was not stolen,” he said. Murdoch even wrote on Jan. 5, 2021, to a top executive urging that prominent Fox personalities issue a statement acknowledging Biden’s legitimate win. At the same time, Murdoch acknowledged that Fox hosts such as Lou Dobbs and Jeanine Pirro at times endorsed false claims of election fraud.

Fox’s fear 

The court papers have laid out a profound concern at Fox over the impact of its election night call that Biden had beaten Trump in the battleground state of Arizona — a call that was accurate. Fox scooped its rivals on the call, but it infuriated Trump and many Fox viewers, who expressed their anger and began tuning in to rival conservative media outlets such as Newsmax. Emails and memos released in the case show Fox executives were highly aware of a drop-off in their network’s viewership at the same time that Newsmax was gaining viewers, and the executives viewed that dynamic as a potential threat. 

Libel law 

In its defense, Fox has relied on a doctrine of libel law, in place since a 1964 U.S. Supreme Court ruling, that has made it difficult for some plaintiffs to prove defamation by news outlets. Public figures, and Dominion fits that standard in this case, have to prove not only that the information reported was incorrect but that the news organization acted with “reckless disregard” about whether it was true or not. Fox says Dominion can’t prove its case, but some First Amendment advocates suggest the voting machine company has a strong argument. Their worry is that a prolonged legal battle would give the Supreme Court a chance to change libel laws that would weaken protection for all the media. 

Judge’s ire 

The runup to the trial has been rocky for Fox, and not just because the public got a look at such private chatter as primetime host Tucker Carlson saying he “passionately” hated Trump. The trial judge has scolded the network for 11th-hour disclosures about Murdoch’s role at Fox News and about some evidence involving Fox Business host Maria Bartiromo, including recordings of her talking off-camera with Trump’s lawyers. (Fox lawyers later apologized to the judge about the Murdoch matter, saying it was a misunderstanding not intended to deceive.) Fox, meanwhile, won some legal fights over limiting what jurors can hear, including a ruling that bars testimony about the Jan. 6, 2021, insurrection at the U.S. Capitol. 

Trump’s interest 

Trump has taken a keen interest in the case, judging by his social media posts. Always concerned about loyalty, and nursing a grudge about the Arizona call, he has expressed anger at revelations in the case that many people at Fox not only did not support his fraud allegations but privately disdained them. Trump had stepped up his criticism of Fox as the 2024 Republican presidential primary gained steam, but he recently has given interviews to Carlson and Hannity. 

The election 

Federal and state election officials, exhaustive reviews in multiple battleground states where Trump challenged his loss, and Trump’s attorney general found no widespread fraud that could have changed the outcome of the 2020 election. Nor did they uncover any credible evidence that the vote was tainted. Trump’s allegations of fraud also have been roundly rejected by dozens of courts, including by judges he appointed. 
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Abortion Bans Raise Fears Inside Republican Party About Backlash in 2024

As a new election season begins, the Republican Party is struggling to navigate the politics of abortion.

Allies for leading presidential candidates concede that their hardline anti-abortion policies may be popular with the conservatives who decide primary elections, but they could ultimately alienate the broader set of voters they need to win the presidency.

The conflict is unfolding across the United States this week, but nowhere more than in Florida, where Republican Governor Ron DeSantis signed into law one of the nation’s toughest abortion bans on Thursday. If the courts ultimately allow the new measure to take effect, it will soon be illegal for Florida women to obtain an abortion after six weeks of pregnancy, which is before most realize they’re pregnant.

Even before he signed the law, DeSantis’ team was eager to highlight his willingness to fight for, and enact, aggressive abortion restrictions. The Florida governor’s position stands in sharp contrast, they say, with some Republican White House hopefuls — most notably former President Donald Trump — who are downplaying their support for anti-abortion policies for fear they may ultimately alienate women or other swing voters in the 2024 general election.

“Unlike Trump, Governor DeSantis doesn’t back down from defending the lives of innocent unborn babies,” said Erin Perrine, a spokesperson for DeSantis’ super political action committee, when asked about Florida’s six-week ban.

‘An electoral disaster’

DeSantis’ latest policy victory in the nation’s third-most populous state offers a new window into the Republican Party’s sustained political challenges on the explosive social issue. In recent days alone, Republican leaders across Iowa, New Hampshire and Washington have struggled to answer nagging questions about their opposition to the controversial medical procedure as Republican-controlled state legislatures rush to enact a wave of new abortion restrictions.

Republicans have suffered painful losses in recent weeks and months across Michigan, New Hampshire, Nevada and even deep-red Kansas in elections that focused, at least in part, on abortion. Last week in Wisconsin, an anti-abortion candidate for the state Supreme Court was trounced by 11 points in a state President Joe Biden carried by less than 1 point.

“Any conversation about banning abortion or limiting it nationwide is an electoral disaster for the Republicans,” said New Hampshire Governor Chris Sununu, a Republican who describes himself as “pro-choice” but also signed a law banning abortions in the state after 24 weeks.

Privately, at least, strategists involved with Republican presidential campaigns concede that the Republican Party is on the wrong side of the debate as it currently stands. While popular with Republican primary voters, public polling consistently shows that the broader collection of voters who decide general elections believe abortion should be legal in all or most cases.

Anti-abortion activists have been particularly vocal in warning Republican presidential candidates that the party’s base will not tolerate any weakness on abortion given that Republican leaders have been vowing for decades to ban abortion rights if given the chance.

Praise for DeSantis

Before this week, Kristan Hawkins, the president of the anti-abortion group, Students for Life of America, was unwilling to describe DeSantis as a leader in the abortion fight.

“This is his opportunity to show himself as a leader on this issue. That’s what’s exciting about this moment,” Hawkins said of DeSantis’ six-week ban. “He has done a lot, but we really needed to see action at the legislative level. I think this ‘heartbeat law’ fully cements his pro-life street cred.”

Such pressure ensures that the issue will remain central to the 2024 campaign as Republican presidential prospects begin to fan out across America to court primary voters. At the very same time, an escalating court battle over access to an FDA-approved abortion pill is forcing Republican leaders to answer more questions.

Former Vice President Mike Pence, long a vocal abortion opponent, condemned the abortion pill during an interview this week with Newsmax while vowing to “champion the right to life.”

“We’re going to continue to champion the interests of women born and unborn and pushing back against the abortion pill,” Pence declared.

Former United Nations Ambassador Nikki Haley told Iowa voters this week that abortion is “a personal issue” that should be left to the states, although she left open the possibility of a federal ban without getting into specifics.

And in New Hampshire, just a day after launching a presidential exploratory committee, South Carolina Senator Tim Scott outlined his support for a federal law that would ban abortions nationwide after 20 weeks of pregnancy.

He tried repeatedly to refocus the conversation on Democrats’ “radical position” on the issue because they generally oppose any abortion restrictions whatsoever.

Sununu, the New Hampshire governor, said he counts Scott as a friend, but was surprised that he would openly discuss his support for a federal abortion ban in New Hampshire, a state long known for supporting abortion rights.

“Of all places to talk about a federal ban of abortion, New Hampshire ain’t it,” Sununu said. “He’s a good candidate and does a great job in the Senate. But know your audience here, man.”

Republican officials in Washington are still looking for answers as well.

Republican strategist Alice Stewart said Republicans must find a way to keep the focus on the failings of the Biden administration, the economy, crime and education in the 2024 campaign.

“Abortion poses a challenge for Republicans. There’s no denying it,” said Stewart, who initially cheered the Supreme Court’s Roe reversal. “Politically, it has become problematic.”
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After Calls to Resign, Feinstein Seeks Judiciary Replacement

Recuperating U.S. Sen. Dianne Feinstein of California asked Wednesday to be temporarily replaced on the Judiciary Committee, shortly after two House Democrats called on her to resign after her extended absence from Washington.

In a statement, the long-serving Democratic senator said her recovery from a case of shingles, disclosed in early March, had been delayed because of complications. She provided no date for her return to the Senate and said she had asked Majority Leader Chuck Schumer to ask the Senate to allow another Democratic senator to serve in her committee seat until she was able to return.

“I intend to return as soon as possible once my medical team advises that it’s safe for me to travel,” Feinstein said. “In the meantime, I remain committed to the job and will continue to work from home in San Francisco.”

Feinstein’s decision to seek a committee stand-in during her recovery comes amid increasing anxiety within her party that her lengthy absence has damaged Democratic efforts to confirm President Joe Biden’s nominees for federal courts in a narrowly divided chamber.

She is the oldest member of Congress, at 89.

California Rep. Ro Khanna, one of two Democratic House members who called Wednesday for Feinstein to resign, said in a statement Wednesday: “This is a moment of crisis for women’s rights and voting rights. It’s unacceptable to have Sen. Feinstein miss vote after vote to confirm judges who will uphold reproductive rights.”

Khanna, a California progressive, wrote on Twitter that Feinstein should step aside. She announced in February that she would not seek reelection in 2024, opening up her seat for the first time in more than 30 years.

“We need to put the country ahead of personal loyalty,” wrote Khanna, who has endorsed the Senate campaign of Democratic Rep. Barbara Lee. “While she has had a lifetime of public service, it is obvious she can no longer fulfill her duties.”

Not long afterward, Democratic Rep. Dean Phillips of Minnesota tweeted that he agreed with Khanna.

Feinstein, he wrote, “is a remarkable American whose contributions to our country are immeasurable. But I believe it’s now a dereliction of duty to remain in the Senate and a dereliction of duty for those who agree to remain quiet.”

The senator, who turns 90 in June, has faced questions in recent years about her cognitive health and memory, though she has defended her effectiveness representing a state that is home to nearly 40 million people.

If Feinstein decides to step down during her term, it would be up to Democratic Gov. Gavin Newsom to fill the vacancy, potentially reordering the highly competitive race.

Newsom declined through a spokesperson to comment on Khanna’s statement.

Before the calls for her resignation, Democratic Sen. Dick Durbin of Illinois, chair of the Senate Judiciary Committee, acknowledged in remarks to CNN that Feinstein’s absence has slowed down their push to confirm nominees in the closely divided panel.

“I can’t consider nominees in these circumstances because a tie vote is a losing vote in committee,” Durbin said.

Feinstein has had a groundbreaking political career and shattered gender barriers from San Francisco’s City Hall to the corridors of Capitol Hill.

She was the first woman to serve as president of the San Francisco Board of Supervisors in the 1970s and the first female mayor of San Francisco. She ascended to that post after the November 1978 assassinations of then-Mayor George Moscone and City Supervisor Harvey Milk by a former supervisor, Dan White.

In the Senate, she was the first woman to head the Senate Intelligence Committee and the first woman to serve as the Judiciary Committee’s top Democrat. She gained a reputation as a pragmatic centrist who left a mark on political battles over issues ranging from reproductive rights to environmental protection.

 
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