Dominion Voting Libel Suit Against Fox News Can Go Forward

Eric Davis, Delaware’s state court judge, was in this position yesterday. US Dominion, Inc. Vs. Fox News Network, LLCThe court denied Fox’s motion for dismissal. Although it is a lengthy opinion, here is a portion of the legal analysis.

[1.]Dismissal Doesn’t Support The Defense of “Neutral Reportage”.

Fox invokes the neutral reportage privilege—also characterized as the neutral reportage doctrine. Fox claims that Dominion was not subject to any liability in broadcasting the allegations against it made by Trump Campaign attorneys regarding a matter of concern.

If the challenged statements are not newsworthy, then recovery is barred for defamation under neutral reporting defense. The neutral reportage doctrine states that the media does not have to “suppress newsworthy statements simply because they are doubtful about their truth.” The doctrine provides that the press is exempt from lawsuits for defamation if the journalist “believes reasonably and honestly” his reporting accurately reflects the accusations.

A federal court of appels developed the neutral reportage defense. However, it appears that this defense runs contrary to United States Supreme Court precedent. It seems to establish a virtually unqualified privilege. In attempting to balance First Amendment freedoms with viable defamation claims, the United States Supreme Court failed. The United States Supreme Court declined to endorse this approach. Each and every one Protected categories such as newsworthiness are not available. Instead, states decided how much protection the media should receive.

The Appellate Section, Fourth Department of New York, is one of New York’s intermediate appellate court. It recognized tension between binding First Amendment precedent and neutral reportage doctrine. The In Hogan v. Herald Co.The Appellate division determined that neutral reporting doctrine cannot be reconciled and binding precedents on free speech. The Appellate Division ruled that the New York neutral reportage doctrine was not applicable under New York law. New York Court of Appeals affirmed. Hogan. In the meantime, the New York Court of Appeals reaffirmed its rejection of the neutral-reportage doctrine. The Court is now unsure if Fox has the right to invoke neutral reportage doctrine, or an analogous newsworthiness privilege, as an absolute defence against liability under New York law for defamation.

Fox tries to differentiate Hogan Based on the facts, it is worth arguing Hogan In the case of plaintiffs representing “private figures”, the neutral reportage doctrine was rejected. In the first matter, Dominion does not appear to be a public or private entity. Therefore, this distinction will not apply. Fox’s argument fails, even though the neutral reporting defense was rejected in respect of private plaintiffs. Even though the neutral reporting privilege might have been denied for private figures plaintiffs, it does not necessarily mean that the defense can be used against public figure defendants. New York does not apply a newsworthiness standard to public figure plaintiffs. They are subject to the actual malice test. The actual malice standard also is the standard under New York’s anti–SLAPP statute (if applicable). Fox’s argument about Fox’s private figures is at best a sign that New York law does not address the matter directly. As a New York matter, it does not provide a neutral defense to reportage.

This defense of neutral reportage would not allow for the dismissal even though it was possible. The defendant must demonstrate that they accurately and objectively reported on the newsworthy events in order to claim and receive this defense. For this defense to be effective, Fox’s coverage must not have been “a personal attack on Dominion”, but neutral. Dominion has well-pleaded accusations that Fox reported was inaccurate and not impartial.

After reviewing the Complaint, the Court found that Fox’s report was not accurate. Dominion allegedly attempted to address Fox’s allegations of election fraud. Dominion sent Fox’s executives and anchors “SETTING THE RERECORD,” after Fox started to link Dominion to the election fraud claims.

STRAIGHT” emails. Dominion emails that included analysis by election experts and others tended to prove the election fraud allegations. Fox news continued to cover Dominion and the election fraud allegations, without reporting on Dominion’s emails. Fox didn’t use Dominion information to correct Fox guests who spread disinformation about Dominion. Fox and its staff argued that there was substantial evidence linking Dominion with an illegal conspiracy to commit election fraud.

The Court also notes that Fox may not have been impartial. The Complaint alleges that Fox refused to provide contrary evidence (including evidence from the Department of Justice), supports the plausible inference that Fox wanted to leave Dominion out of the narrative. The Complaint also alleges that Fox employees were urged or offered answers in numerous cases. Fox may not have reported the matter truthfully and dispassionately, by asking questions that were unfairly interpreted or approving answers in a manner that promoted or supported a story in which Dominion was guilty of election fraud.

Fox’s counterarguments are not convincing the Court. Fox first argues that it wasn’t required to report Dominion refutations and “defend” Dominion. Fox has the evidence to prove that election fraud claims are false. However, it is reasonable to infer that Fox published or made statements knowing or having reckless disregard for reality. Fox does not normally have an obligation to defend targets of the allegations it reports on. However, Fox should report the facts accurately and objectively using the neutral reporting defense. Fox claims there were instances when Fox criticised Dominion, and Fox did not report Dominion’s responses. Fox could end up right. However, it is now the pleadings phase. At this stage, the argument raises facts which the Court has to resolve in Dominion’s favour. This argument will be developed by Fox during discovery.

If the “espouse or consents to the charges made” by another party, then the neutral defense of reportage does not apply.[]Or who intentionally distorts the statements in order to make a personal attack on the plaintiff. All the allegations in the Complaint support Fox’s reasonable conclusion that it did both. Dominion’s accusations at the pleadings stage supported the reasonable inference, therefore, that Fox wasn’t engaged in neutral news reporting.

[2.]This Privilege of the Fair Report Doesn’t Support Dismissal

Fox then asserts the “fair-report privilege.” New York’s Civil Rights Law Section 74 codifies the fair-report privilege. Section 74 provides that a “civil action cannot be maintained … for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.” To be eligible for privilege, the publication must contain a fair and true account of an official proceeding. It is concluded that Fox’s report (i), which was inaccurate or false, and (ii), did not relate to an official proceeding by the Court.

Fox must have a report on election fraud litigation or investigation that is “substantially accurate” in order for the fair reporting privilege to be applicable. It is considered to be substantial accurate any report that “it produces no different effect on a receiver than a report containing exactly truth” even though it may contain minor inaccuracies. New York courts evaluate the whole publication to determine if it is substantially accurate. Not just the individual articles within that larger publication. New York courts analyze the entire publication in terms of its “effect on the average reader”.

By statute, the fair and true report must be “of … proceedings.” New York law says that statutory terms must be interpreted according to their normal meaning. The meaning of the word “of”, in this context, is “about”, “relating to” and “in regard to”. New York’s decisions state that fair reporting privilege does not apply if the report is “comment.”[s] on a … proceeding.” New York’s decisions state that the report must be of a proceeding. The privilege is not subject to challenge if the report does not “of” the proceeding. Defamatory statements cannot be protected under Section 74 merely by the fact that a party has initiated judicial proceedings to incorporate those statements.

According to the Court, most of these statements were made prior to a lawsuit was filed.e.g.The Powell claims. Even if the statements were truthful, they did not constitute a court proceeding. This alone can preclude fair reporting privilege.

Fox responds to this with decisions that Fox says the fair report privilege is applicable to both “anticipated”, or “forthcoming,” lawsuits and pending proceedings. Fox claims its staff were talking about pending cases of election fraud in the country and federal investigations. The Complaint alleges that Fox personnel didn’t tailor their remarks to those allegations. Accordingly, the Court found that the Court is unclear from the perspective of the viewer as to whether Fox was reporting about those proceedings.

Fox’s report could also have not been entirely accurate. Fox has published several statements from guests that stated they had evidence to back up their claims at various points. However, the Complaint alleges that these guests did not provide any evidence to support their claims. Fox and its personnel continued, on television and through social media, to perpetuate the narrative that forthcoming lawsuits would expose Dominion’s election fraud. Fox is also accused of mischaracterizing these claims on numerous occasions.e.g.Commentaries claiming that lawsuits were about kickbacks. The Complaint alleges at this stage that Fox’s statements are a significant departure from the alleged facts.

Referring to the entire publication’s impact on average viewers, the Complaint supports the reasonable inference of Fox repeatedly misstating election fraud allegations to defame Dominion. At this point, Fox’s statements may not be fair or true reports of official proceedings. The Motion is therefore denied in the limited extent that it is protected by the fair report privilege.

[3.]The Opinion Defense doesn’t support dissolution.

Fox’s final defense concerns the opinion vs. fact distinction—the opinion defense. Fox claimed that all defamatory statements made in Fox’s newsroom were pure opinion. Therefore, they cannot be taken to court. But, this fact-based defense of opinion is valid. Dominion claims are true and Fox statements weren’t opinions. The factual questions about whether Fox’s statements are opinion or facts should be considered before dismissal.

“Falsity is an essential element of a lawsuit for defamation. Only facts can be proven to be false. Therefore, statements claiming facts cannot properly form the basis of a suit. However, pure opinions are ineligible for action. The difference between pure opinions and statements of fact is an issue of law in New York. New York courts use a three-factor test to distinguish between pure opinions and statements of facts.

(1) Does the language being used have a specific meaning? [that] is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether the full context of the communication in which the statement appears … signal[s to]Listeners and readers should realize that information is mostly opinion.

A “opinion” can be considered actionable when a reasonable listener would consider the speaker to have conveyed facts concerning the plaintiff. Also, “[t[he key inquiry is whether [the]However challenged, defendant may label it as “objective fact assertions.”

Courts cannot ignore literalism when conducting this inquiry. It does not give a media defendant immunity for “opinion”, nor does it allow a plaintiff in libel to continue its actions. Courts must consider not only the meaning of words but also the overall tenor and effect of speech when deciding whether speech can be actionable. This is from the perspective of the normal person.

The Complaint confirms that Fox reported on a fact. i.e.The Dominion was either involved in or caused the election fraud. Fox News personnel repeatedly described the matter as truth-seeking. The Court doesn’t view Fox statements as merely statements of opinion when it examines the Complaint. However, the court does not have to assess each commentator’s “opinion” as an opinion. Although Fox seems to have stated facts and not opinions, the requirement of “reasonable listening” cautions against any interpretation during the pleadings stage. At this stage it is enough to say that the Complaint contains a plausible defamation claim. This can be based upon what reasonable listeners could conclue are false statements.

Furthermore, it is plausible for the Court to conclude that Fox’s report contained false information mixed with opinion. New York law allows for the filing of action against mixed opinions. Mixed opinions can be distinguished from pure opinions. Pure opinions are expressed views that do not conceal or infer unrevealed facts. Mixed opinions “implement that the mixed opinion is founded on facts that justify it but are not known to all who read or hear it.” This is “[w]An actionable mixed and pure opinion are different because the speaker is implying that they know certain facts. [the]Audience, who support [the speaker’s]opinions and that are harmful to the individual being discussed.” Even though the speaker may disclose the facts that underpin its opinion, they are still valid if these facts are not correct or complete, or if [the speaker’s]Their assessment is incorrect.” The Court should use the three-factor test and the reasonable listener standard to determine the differences between pure and mixed opinions.

It is reasonable to believe that Fox News and Fox personnel broadcast mixed opinions which were either false or incomplete for the average viewer, for the majority of the reasons mentioned above. Fox reporters often made vague statements about election fraud that didn’t disclose the sources or connect them to election fraud lawsuits. Fox categorizes the comments of its journalists as “commentary”, which uses “loose, hyperbolic rhetoric” to entertain value. However, loose or hyperbolic language is still actionable if they are based on false facts that were not disclosed to viewers. Therefore, the Complaint supports Fox’s reasonable inference of making unprotected statements that defamed Dominion. Fox’s arguments at this point do not support dismissal.

[4.]Dominion has adequately claimed actual malice.

Fox claims Dominion’s Complaint does not adequately address fault.e.g.Actual malice). The Court disagrees. At this stage, the Court finds that the Complaint alleges facts that Fox made the challenged statements with knowledge of their falsity or with reckless disregard of their truth….