(Image: Private Media)
(Image: Private Media)

This article is part of a series about a legal threat sent to Crikey by Lachlan Murdoch, over an article Crikey published about the January 6 riots in the US. For the series introduction go here, and for the full series go here.

“Truth isn’t truth”, declared Rudolph Giuliani, favourite lawyer of Donald Trump and favoured guest on Rupert and Lachlan Murdoch’s Fox News network, in 2018.

He’d know. In the aftermath of the 2020 presidential election, when Trump was insisting that he had been defrauded out of a clear victory and Fox News was assiduously spreading the lie, Giuliani claimed — and Fox broadcast — that Dominion, the voting machine company that had rapidly become the focal point of the conspiracy theory, was owned by a Venezuelan company with close ties to the deceased dictator Hugo Chavez, and that it had been set up specifically “to fix elections”.

That was a total, baseless falsehood. As it was evidence-less, like all of the wild allegations regarding Dominion that Fox was busily promoting at the time, the person making it either knew it was false or was acting with reckless disregard as to whether it was true or not.

Dominion’s machines were employed in 28 US states. Its business was huge, but the campaign against it was devastating, it says. Fed up, it decided to seek justice by suing for defamation. Its targets are Fox News, Fox Corporation, Giuliani and a couple of the most outrageous progenitors of the assault on its reputation, who were also constantly platformed by Fox.

Dominion is seeking US$1.6 billion in damages. Fox has tried, and failed, to have the case dismissed, and the parties are now deep in discovery and depositions, preparing for a trial scheduled to begin in April 2023. The stakes are existential, for both companies.

Dominion’s case theory is straightforward: it points to a sequence of objective and intriguing facts. On election night in 2020, Fox surprised everyone by going early with its call on a key battleground state, declaring (correctly) that Arizona would be won by Joe Biden. Trump reacted furiously, calling Rupert Murdoch personally to demand that the call be reversed. It wasn’t.

The Trump camp, desperate to counter the clear reality that the election was producing a landslide win for Biden with the alternative narrative that it was actually being stolen, turned on Fox itself. Trump himself declared the falling-out of his love affair with Fox, tweeting that “they forgot what made them successful … they forgot the Golden Goose”. The network had indeed begun haemorrhaging viewers.

Dominion believes that the Murdochs, worried about losing the base audience that had propelled it to dominance and generated massive profits for them, panicked and made a definitive editorial choice: to turn on a dime and start promoting the stolen election lie, thereby wooing the Trump mob back. The rest is history.

The evidence of deceit is overwhelming. Fox broadcast endless hours of baseless lies about Dominion, from the mouths of its own commentators and guests such as Giuliani. It mounted and maintained a case against Dominion of perpetrating, in summary, corporate treason.

That’s not enough for Dominion to win. It must also prove “actual malice”: that senior executives at Fox either knew that what their hosts and guests were saying was false, or that they had reckless disregard for the truth because they knew or wilfully ignored evidence that proved the allegations wrong. Essentially, that Fox deliberately lied to cause Dominion harm.

The judge and appeal court, in knocking back Fox’s attempts to have the case thrown out, have affirmed that Dominion’s malice argument has legs. That will be freaking Fox out, explaining why it has turned to a scorched-earth strategy and is searching for any evidence it can find to support the bullshit conspiracy theories it helped promote.

That won’t work, so the Fox defence will no doubt focus on American law’s robust protection of free speech — including untrue free speech. It will seek to prove that the network was just broadcasting news, which happened to include perhaps wild but definitely newsworthy allegations of election fraud that the former president and his supporters were loudly making.

Fox will be assiduous in its efforts to protect the Murdochs from any taint of personal responsibility for what the corporation did. Dominion is equally determined to show that Fox followed a consciously constructed and commercially motivated strategy of amoral lying, of which the principal architects were Rupert and Lachlan themselves.

In its most recent filing with the US Securities and Exchange Commission, Fox is backing itself for a clear win, stating its belief that the Dominion claim and a similar one by Smartmatic, another voting machine company, are “without merit”. Brave.

In terms of US defamation law, this is one of the most significant cases ever litigated. It will test the limits of the constitutional protection of the free press, in the context of an almost perfect example of what is becoming more and more obviously the greatest threat to democracy: the Big Lie. Not that this is a new revelation, just a lesson we’re having to re-learn.

Truth is, in fact, truth. As Dominion’s filing declares: “The truth matters. Lies have consequences.”

Fox News — and all of us — will find out if that’s right.

Should Fox News’ coverage of the 2020 US election be protected by free speech? Let us know by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.