November 4, 2022

IntelBrief: Election Libel Suits Could Shake Up Partisan Media Landscape

AP Photo/Ben Gray

Bottom Line Up Front

  • Ongoing lawsuits against Fox News and 2020 election conspiracy purveyors may help blunt excesses of partisan U.S. news media and highlight the corrosive impacts of disinformation.
  • The case could also shed light on Fox’s internal operations, as plaintiffs capture internal company communications and depose its biggest on-air personalities and executives.
  • The plaintiffs (two major voting machine companies, Dominion and Smartmatic) are seeking billions of dollars in compensation.
  • The suit comes on the heels of other significant legal penalties and business losses incurred by media organizations, due in part to defamation and the deliberate spread of disinformation.

Fox News is at the center of a series of lawsuits launched over false allegations made by some of its TV hosts and guests who sought to delegitimize the results of the 2020 U.S. Presidential election. The lawsuits, in which voting machine companies Dominion and Smartmatic are collectively demanding more than $5.6 billion in restitution from several conservative news networks and individuals, will test the degree to which major media companies and public figures can be held accountable for their role in perpetuating “the Big Lie” that former U.S. President Trump won the 2020 election. By forcing media companies like Fox to rein in harmful, dishonest, and incendiary content, the suits could reshape the limits of acceptable political discourse in an increasingly divisive American media landscape.

Besides Fox News hosts and guests, the plaintiffs are also pointing fingers at executives, alleging they were complicit in circulating false narratives that voting machines had been rigged in favor of Joe Biden, who was officially declared the winner and inaugurated in January 2021. The Fox case, scheduled to go to trial in April 2023, is poised to demystify one of the world’s most influential political media organizations and open it to public scrutiny. Dominion has acquired details of internal conversations among Fox News personnel and leadership from captured company emails and text messages. Moreover, both Dominion and Smartmatic continue to depose former and current on-screen talent, backstage producers, and boardroom executives. High-profile network stars like Tucker Carlson, Sean Hannity, and others have already been questioned under oath, while Fox News CEO Suzanne Scott is expected to face deposition soon.

The case against Fox, according to legal experts, is likely to hinge on whether the plaintiffs can prove that network decision-makers knew that the claims they were propagating regarding the election were certainly or likely false and aired them anyway. Early evidence shared by the plaintiffs indicates that, behind the scenes, personnel at multiple levels of the Fox hierarchy expressed concern or sought to prevent the spread of election lies on their shows. One news producer warned that host Jeanine Pirro should not be allowed on-air after she made false claims about manipulated vote counts, while network executives tried to prevent election-denying lawyers and Trump allies Sydney Powell and Rudy Giuliani – both of whom are facing their own related lawsuits by the plaintiffs – from receiving airtime. Fox CEO Scott also initially pushed back against the claims, reportedly saying, “We can’t give the crazies an inch,” amid criticism from the Trump campaign and its allies, who turned on Fox News once it declared Joe Biden’s win in Arizona.

Yet, in the weeks after the election, Fox News hosts grew more engaged with election conspiracies. Dominion alleges in the suit that the shift occurred just after the network appeared to lose some audience share to media organizations like Newsmax and One America News (OAN), both of which refused to validate the election results and sought to outflank Fox on the right by currying favor with conspiracy theorists and QAnon adherents. Both Newsmax and OAN are also being sued by Dominion. In the week following the election, Newsmax more than doubled its viewership from the previous week and enjoyed a 17-fold increase over its summer ratings, according to CNN. During the two weeks after the 2020 election, Fox News programs ultimately questioned the election results or promoted election conspiracies at least 774 times, according to Media Matters. Documents have also emerged prior to the case which reportedly suggests a precedent for the network’s business leadership to guide the editorial direction of its programming.

The Dominion and Smartmatic lawsuits are the latest economic and legal woes for media companies propagating extremely partisan views and conspiracy theories in recent years. In recent months, conspiracy theorist and radio personality Alex Jones has been ordered to pay over $1 billion to families and victims of the school shooting in Sandy Hook, as well as an FBI agent who responded to the scene, after decrying the victims – many young elementary school children and teachers - as crisis actors. OAN was pulled from its last remaining major cable provider this summer, two years after its YouTube channel was demonetized for spreading COVID-19 misinformation. Newsmax suffered to a lesser extent when it was pulled from the lineup of a few smaller providers earlier this year.

Despite this backlash, election skepticism is highly prevalent among Republican voters and candidates. Research from The Soufan Center has also highlighted the pervasiveness of conspiracy theories within the United States, as well as the role of malicious foreign actors in amplifying and propagating them to sow discord and spread disinformation. According to the FiveThirtyEight Project, less than one-third of this year’s Republican midterm nominees have explicitly accepted the results of the 2020 election. Further, according to an Axios-Momentive poll conducted one year after the January 6th insurrection, 42% of Americans still remained unconvinced that Joe Biden’s presidency was legitimate. Despite some post-election audience bleeding, Fox News and its personnel remain undeniable powerhouses of influence for the American political right. In the summer following the 2021 Capitol insurrection, Tucker Carlson’s program became the most-watched cable news show in history, even as some of his advertisers fled in response to his increasingly nationalistic and xenophobic rhetoric, while the network consistently tops competitors like CNN and MSNBC in the ratings race.