WILMINGTON, Del. – Hosts at Fox News had serious concerns about allegations of voter fraud in the 2020 presidential election being made by guests who were allies of former President Donald Trump, according to court filings in a $1.6 billion defamation lawsuit against the network.
“Sidney Powell is lying,” about having evidence for election fraud, Tucker Carlson told a producer about the attorney on Nov. 16, 2020, according to an excerpt from an exhibit that remains under seal.
The internal communication was included in a redacted summary judgment brief filed Thursday by attorneys for Dominion Voting Systems.
Carlson also referred to Powell in a text as an “unguided missile,” and “dangerous as hell.” Fellow host Laura Ingraham, meanwhile, told Carlson that Powell is “a complete nut. No one will work with her. Ditto with Rudy,” referring to former New York mayor and Trump supporter Rudy Giuliani.
Sean Hannity, meanwhile, said in a deposition “that whole narrative that Sidney was pushing, I did not believe it for one second," according to Dominion's filing.
Denver-based Dominion, which sells electronic voting hardware and software, is suing both Fox News and parent company Fox Corporation. Dominion said some Fox News employees deliberately amplified false claims that Dominion had changed votes in the 2020 election, and that Fox provided a platform for guests to make false and defamatory statements.
Attorneys for the cable news giant argued in a counterclaim unsealed Thursday that the lawsuit is an assault on the First Amendment. They said Dominion has advanced “novel defamation theories” and is seeking a “staggering” damage figure aimed at generating headlines, chilling protected speech and enriching Dominion’s private equity owner, Staple Street Capital Partners.
“Dominion brought this lawsuit to punish FNN for reporting on one of the biggest stories of the day— allegations by the sitting President of the United States and his surrogates that the 2020 election was affected by fraud,” the counterclaim states. “The very fact of those allegations was newsworthy.”
Fox attorneys also said in their own summary judgment brief that Carlson repeatedly questioned Powell’s claims in his broadcasts. “When we kept pressing, she got angry and told us to stop contacting her,” Carlson told viewers on Nov. 19, 2020.
Fox attorneys say Dominion’s own public relations firm expressed skepticism in December 2020 as to whether the network's coverage was defamatory. They also point to an email from Oct. 30, 2020, just days before the election, in which Dominion's director of product strategy and security complained that the company's products were “just riddled with bugs.”
In their counterclaim, Fox attorneys wrote that when voting-technology companies denied the allegations being made by Trump and his surrogates, Fox News aired those denials, while some Fox News hosts offered protected opinion commentary about Trump’s allegations.
Fox’s counterclaim is based on New York’s “anti-SLAAP” law. Such laws are aimed at protecting people trying to exercise their First Amendment rights from being intimidated by “strategic lawsuits against public participation,” or SLAPPs.
“According to Dominion, FNN had a duty not to truthfully report the President’s allegations but to suppress them or denounce them as false,” Fox attorneys wrote. “Dominion is fundamentally mistaken. Freedom of speech and freedom of the press would be illusory if the prevailing side in a public controversy could sue the press for giving a forum to the losing side.”
Fox attorneys warn that threatening the company with a $1.6 billion judgment will cause other media outlets to think twice about what they report. They also say documents produced in the lawsuit show that Dominion has not suffered any economic harm and do not indicate that it lost any customers as the result of Fox’s election coverage.
Superior Court Judge Eric Davis is scheduled to preside over a trial beginning in mid-April, but granting summary judgment to either side would obviate the need for a jury trial that could stretch over five weeks.
In its 192-page brief, Dominion said the judge should rule in its favor because “no reasonable juror could find in Fox’s favor on each element of Dominion’s defamation claim.” Dominion attorneys also assert that no reasonable juror could find in favor of Fox’s “neutral reportage” and “fair report” defenses.
“Recounts and audits conducted by election officials across the U.S. repeatedly confirmed the election’s outcome, including specifically that Dominion’s machines accurately counted votes," Dominion's filing states. “That evidence alone more than suffices for summary judgment on the falsity of the claims that Dominion rigged the election and its software manipulated vote counts.”
Fox News attorneys argue the network's coverage and commentary are not defamatory.
"Even assuming, for the sake of argument, that Dominion could point to any statement that could be actionable defamation, this court should grant Fox News’ summary judgment motion for the independent reason that Dominion lacks clear and convincing evidence that the relevant individuals at Fox News made or published any statement with actual malice," the attorneys wrote.
Davis ruled last month that, for the purposes of the defamation claims, he will consider Dominion to be a public figure. That means Dominion must prove by a preponderance of the evidence that the Fox defendants acted with actual malice or reckless disregard for the truth.
Attorneys for Fox Corp. joined in the brief filed by Fox News, while also asserting that the parent company is independently entitled to summary judgment because Dominion has not produced any evidence needed to hold it liable.