The judge's order stitches together all the snippets that have been coming out in the press over the past few weeks into a chronological narrative that, in my opinion, is devastating to Fox. If you want to know the inside story of what was happening at Fox after the election, it's a fascinating read.
https://s3.documentcloud.org/documents/ ... 033123.pdf
I'm just going to quote a few parts of the order that I found interesting.
This is similar to the Tucker Carlson defense -- no view should understand that Fox is presenting true facts.FNN contends that no reasonable viewer would understand that FNN’s coverage and commentary on the Dominion allegations as presenting information that FNN determined to be true. Instead, FNN asserts that the reasonable viewer would understand that FNN is merely “fulfilling its journalistic duty to ‘present[] newsworthy allegations made by others
The judge found, as a matter of law, that Fox made false statements about Dominion. That's the first element of defamation.
As discussed above, Dominion has offered proof demonstrating that the allegations were substantially false. Comparing the allegations at issue to the truth, the truth would have likely had a different outcome on the average viewer, as the statements at issue were dramatically different than the truth. In fact, although it cannot be attributed directly to Fox’s statements, it is noteworthy that some Americans still believe the election was rigged.
Fox takes a nuanced approach to falsity. Fox would have the Court test whether specificpoints stated by the FNN hosts are true. For example, Fox argues that if a FNN host notes that the next guest is Ms. Powell, that Ms. Powell is an attorney for former President Trump and that Ms. Powell will be stating the position of the former President, then all the statements are true and there can be no defamation. As set out above, falsity “refers to the content of an allegedly defamatory statement, not the act of republishing it.” The Statements, discussed herein, relate to allegations against Dominion and not the roles of parties or what they will be talking about.
While the Court must view the record in the light most favorable to Fox, the record does not show a genuine issue of material fact as to falsity. Through its extensive proof, Dominion has met its burden of showing there is no genuine issue of material fact as to falsity. Fox therefore had the burden to show an issue of material fact existed in turn. Fox failed to meet its burden. The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true. Therefore, the Court will grant summary judgment in favor of Dominion on the element of falsity.
(Emphasis in original.)
The judge also held as a matter of law that Fox News "published" the false statements. He also held that whether Fox Corporation, which owns Fox News, also "published" the statements could not be decided as a matter of law, meaning that it would a question for the jury at trial. The judge also held that the issue of "actual malice" would be decided at trial.
The judge did find, as a matter of law, that the false statements were defamatory "per se." That means that damages to Dominion are presumed and that Dominion does not have to prove it suffered actual damages to win the case. He also ruled that Dominion had presented sufficient evidence that it incurred actual damages to have a jury decide the issue of damages.
The judge also rejected Fox's attempt to shield itself from liability under the "neutral report privilege," holding the privilege did not exist under New York law. He also observed:
The judge also held that, as a matter of law, Fox was not shielded by the "fair report privilege" or the "privilege for opinion." With regard to the latter, Fox argued that a reasonable viewer would have recognized that the false statements were matters of opinion, not fact. Again, this sounds like the Tucker Carlson defense:Even if the neutral report privilege did apply, the evidence does not support that FNN conducted good-faith, disinterested reporting. Like in Cianci v. New Times Pub. Co., where the Second Circuit held that defendant’s failure to reveal facts and plaintiff’s side of the story was not disinterested reporting. FNN’s failure to reveal extensive contradicting evidence from the public sphere and Dominion itself indicates its reporting was not disinterested.
The court rejected Fox's argument because the privilege does not apply to mixed statements of opinion and fact and because the privilege does not apply to accusations of criminal conduct, such as the accusations of election fraud committed by Dominion.FNN urges the Court to find that a reasonable viewer would understand that the statements, in the immediate and broader social context in which the statement is made, convey opinions, not fact. FNN cites case law to argue that the use of “[l]oose, figurative, or hyperbolic language” “negate(s) the impression” that a person is “seriously” stating a fact. Here, according to FNN, given the context of the allegations, suggestions of investigating the
claims negate the impression that the statement is factual. Furthermore, FNN alleges that “spirited debate on opinion shows does not lend well to statements of actual fact.”Under that rationale, FNN claims that many of the contested statements are protected opinions of FNN hosts, not actionable statements. FNN highlights phrases that it argues would cause a reasonable viewer to understand the statements as opinions.
So, what does all this mean? It means that, before the trial even starts, Dominion has already "won" on most of the elements of defamation. To with against Fox News, the only element it must prove at trial is actual malice. To win against Fox Corporation, it also must win on the element of "publication," i.e., did FC actually publish the statements made by Fox News?
Dominion can, but is not required to, put on a damages case. The judge reserved the issue of whether the jury will be entitled to award punitive damages until the parties have finished trying the case,
The actual malice standard is hard to meet. But looking over the evidence the judge summarized in the order, it sure looks like "reckless disregard of the truth" to me.