I generally stay away from AMT, but GODDAM!!!!…these motherfuckers all want to paint the attack on pelosi’s 82 yo husband as evidence of biden’s “failure on crime.” let’s conveniently forget to mention the right’s violent rhetoric and the suspect’s beliefs that the 2020 election was stolen, COVID is a hoax, the deep state is real, etc, etc…..all the shit that FOX and his far right websites fed him. these fuckers at FOX have absolutely no decency.
unfortunately, my 75 yo MIL is, like so many others, too stupid to know any better. FOX feeds her lies, day after day.
If you watch Faux, I’ve got a bridge to sell you along with some POOTWH 2024 signs.
A Twitter video doesn’t show the balloon exploding, but Fox aired it anyway
The governor of Montana was telling Tucker Carlson about an alleged Chinese spy balloon that wafted over his state this week, complaining that the federal government wouldn’t let him shoot it down, when the host cut in with an alarming update.
“Governor, I hate to pull random video off the internet and ask you to respond to it, but this is going around,” Carlson said Friday evening, as Twitter footage of a bright flash in the clouds over Billings, Mont., played on the Fox News split-screen. “It appears to be some social media video of an explosion over your state, showing what looks like a smoke trail in to the sky.”
Gov. Greg Gianforte (R) seemed a little caught off-guard. “I was notified just minutes before we came on the air,” he said. “We’re monitoring the situation. I’m talking to the National Guard.
He needn’t have bothered them. Within two hours of Billings resident Dolly Moore’s viral report on Twitter — “I saw a jet go by so fast and then explosion in the sky. Holy crap!,” she wrote below her video — the city and the National Weather Service had debunked it. Whether the balloon is a weather sensor gone astray or a surveillance device for the Chinese government, it was still drifting peacefully 60,000 feet above the Earth. It wouldn’t fall until the following afternoon, when a U.S. military aircraft shot it down over the Atlantic coast.
But those facts did little to dissuade the tide of misinformation and speculation that followed in the balloon’s path — or the horde of journalists thirsty for any footage of the mysterious device over the weekend, many of whom asked Moore for permission to put her video on the news, and only later determined it had no business being there.
The media, and seemingly the entire country, had spent a full day tracking the balloon, which the U.S. government says is a spy device sent from China, by 7 p.m. Eastern time on Friday, when Moore tweeted “what I just caught [a] few minutes ago out my window” in Billings and sparked a brand new frenzy.
Journalists representing Fox News, CNN, the New York Times, broadcast networks and myriad local stations slid into her replies, asking for permission to use her video in the same legalistic language with which reporters typically beg for amateur footage of natural disasters and wars.
“My son finally had to take my phone,” Moore told Billings’s KULR-TV in an interview that aired Friday.
By then, many of the journalists who had rushed to her video were having second thoughts.
The Washington Post called the National Weather Service on Friday night, and was told by meteorologist Shawn Palmquist that the agency had not received any reports of explosions or plane crashes near Billings. “We think it’s a contrail from a jet,” he said of the so-called smoke trail in Moore’s video. “I couldn’t speculate on anything further than that.”
Kerem Inal, an ABC News visual verification producer who had asked Moore for permission to use the footage less than 30 minutes after it was tweeted, posted a Twitter thread early Saturday morning explaining why his network backed off.
“Although I don’t think the video was fake, without the necessary information to verify what we were seeing, our advice was to not use the video,” Inal wrote, explaining that the balloon was more than 900 miles from Moore’s location at the time she took the footage. “It falls on us, journalists, to make sure all the pieces of the puzzle fit, before amplifying information,” he added.
The Post could find no indication that CNN, the Times or other major outlets that Moore gave permission to use her video ultimately did so. But Fox aired it twice.
“MASSIVE EXPLOSION OVER MONTANA” ran across the bottom of the screen at one point Friday evening, as host Jesse Watters ran Moore’s video and exclaimed, “Wow.” At almost the same time Tucker Carlson was asking Gianforte about the video on his own show, a Fox News producer was trying to set the record straight, tweeting that military officials had told a network correspondent that “videos purporting to show the balloon exploding are not real.”
Shortly after 9 p.m., the city of Billings announced on Twitter that Gianforte and Montana’s disaster and emergency services office confirmed there had been no explosions in the state. “They are aware of the video and it cannot be substantiated,” the city wrote.
It took many hours, however, for those denials to make it into an online article in the Daily Mail that managed to embellish on Moore’s tweets. Multiple “witnesses” had seen the “explosion in the sky,” the tabloid wrote (though none besides Moore were cited). “Mysterious video of the aftermath shows a trail of smoke in the sky where the balloon was last spotted.” The Daily Mail did not immediately respond to a request for comment Saturday afternoon, but the article was updated shortly afterward, removing some erroneous language and adding that authorities “confirmed the video is a hoax.”
Predictably, a stew of conspiracy theories bubbled up in reader comments beneath the article, and across the internet. Some thought the Chinese government had paid President Biden to not disturb the balloon. Others thought he was about to shoot it down and trigger nuclear war. Some said the balloon was carrying a deadly virus. Others said there was no balloon at all.
Nadine Ajaka, The Post’s executive producer of visual forensics, said authenticating amateur videos typically begins with verifying the source’s identity and requesting the original file, which can include metadata that proves when and where the video was filmed. But if the original source isn’t responsive, video forensics analysts have other methods of geolocating a video.
“We’ll look at identifying landmarks or other details in the image, and cross-reference it with other tools like Google Earth,” Ajaka said. “Or if there are several videos of the same incident, we’ll be able to place that video in time and space.”
Like most of its competitors, The Post elected not to report on Moore’s video Friday evening.
Asked whether Fox News planned to run corrections on itssegments, a network spokesperson declined to answer.
But some 18 hours after those segments ran, on Saturday afternoon, Fox carried live footage of the balloon going down over the South Carolina coast, shot out of the sky on the president’s orders. This time the footage wasn’t in dispute.
If you watch Faux, I’ve got a bridge to sell you along with some POOTWH 2024 signs.
A Twitter video doesn’t show the balloon exploding, but Fox aired it anyway
The governor of Montana was telling Tucker Carlson about an alleged Chinese spy balloon that wafted over his state this week, complaining that the federal government wouldn’t let him shoot it down, when the host cut in with an alarming update.
“Governor, I hate to pull random video off the internet and ask you to respond to it, but this is going around,” Carlson said Friday evening, as Twitter footage of a bright flash in the clouds over Billings, Mont., played on the Fox News split-screen. “It appears to be some social media video of an explosion over your state, showing what looks like a smoke trail in to the sky.”
Gov. Greg Gianforte (R) seemed a little caught off-guard. “I was notified just minutes before we came on the air,” he said. “We’re monitoring the situation. I’m talking to the National Guard.
He needn’t have bothered them. Within two hours of Billings resident Dolly Moore’s viral report on Twitter — “I saw a jet go by so fast and then explosion in the sky. Holy crap!,” she wrote below her video — the city and the National Weather Service had debunked it. Whether the balloon is a weather sensor gone astray or a surveillance device for the Chinese government, it was still drifting peacefully 60,000 feet above the Earth. It wouldn’t fall until the following afternoon, when a U.S. military aircraft shot it down over the Atlantic coast.
But those facts did little to dissuade the tide of misinformation and speculation that followed in the balloon’s path — or the horde of journalists thirsty for any footage of the mysterious device over the weekend, many of whom asked Moore for permission to put her video on the news, and only later determined it had no business being there.
The media, and seemingly the entire country, had spent a full day tracking the balloon, which the U.S. government says is a spy device sent from China, by 7 p.m. Eastern time on Friday, when Moore tweeted “what I just caught [a] few minutes ago out my window” in Billings and sparked a brand new frenzy.
Journalists representing Fox News, CNN, the New York Times, broadcast networks and myriad local stations slid into her replies, asking for permission to use her video in the same legalistic language with which reporters typically beg for amateur footage of natural disasters and wars.
“My son finally had to take my phone,” Moore told Billings’s KULR-TV in an interview that aired Friday.
By then, many of the journalists who had rushed to her video were having second thoughts.
The Washington Post called the National Weather Service on Friday night, and was told by meteorologist Shawn Palmquist that the agency had not received any reports of explosions or plane crashes near Billings. “We think it’s a contrail from a jet,” he said of the so-called smoke trail in Moore’s video. “I couldn’t speculate on anything further than that.”
Kerem Inal, an ABC News visual verification producer who had asked Moore for permission to use the footage less than 30 minutes after it was tweeted, posted a Twitter thread early Saturday morning explaining why his network backed off.
“Although I don’t think the video was fake, without the necessary information to verify what we were seeing, our advice was to not use the video,” Inal wrote, explaining that the balloon was more than 900 miles from Moore’s location at the time she took the footage. “It falls on us, journalists, to make sure all the pieces of the puzzle fit, before amplifying information,” he added.
The Post could find no indication that CNN, the Times or other major outlets that Moore gave permission to use her video ultimately did so. But Fox aired it twice.
“MASSIVE EXPLOSION OVER MONTANA” ran across the bottom of the screen at one point Friday evening, as host Jesse Watters ran Moore’s video and exclaimed, “Wow.” At almost the same time Tucker Carlson was asking Gianforte about the video on his own show, a Fox News producer was trying to set the record straight, tweeting that military officials had told a network correspondent that “videos purporting to show the balloon exploding are not real.”
Shortly after 9 p.m., the city of Billings announced on Twitter that Gianforte and Montana’s disaster and emergency services office confirmed there had been no explosions in the state. “They are aware of the video and it cannot be substantiated,” the city wrote.
It took many hours, however, for those denials to make it into an online article in the Daily Mail that managed to embellish on Moore’s tweets. Multiple “witnesses” had seen the “explosion in the sky,” the tabloid wrote (though none besides Moore were cited). “Mysterious video of the aftermath shows a trail of smoke in the sky where the balloon was last spotted.” The Daily Mail did not immediately respond to a request for comment Saturday afternoon, but the article was updated shortly afterward, removing some erroneous language and adding that authorities “confirmed the video is a hoax.”
Predictably, a stew of conspiracy theories bubbled up in reader comments beneath the article, and across the internet. Some thought the Chinese government had paid President Biden to not disturb the balloon. Others thought he was about to shoot it down and trigger nuclear war. Some said the balloon was carrying a deadly virus. Others said there was no balloon at all.
Nadine Ajaka, The Post’s executive producer of visual forensics, said authenticating amateur videos typically begins with verifying the source’s identity and requesting the original file, which can include metadata that proves when and where the video was filmed. But if the original source isn’t responsive, video forensics analysts have other methods of geolocating a video.
“We’ll look at identifying landmarks or other details in the image, and cross-reference it with other tools like Google Earth,” Ajaka said. “Or if there are several videos of the same incident, we’ll be able to place that video in time and space.”
Like most of its competitors, The Post elected not to report on Moore’s video Friday evening.
Asked whether Fox News planned to run corrections on itssegments, a network spokesperson declined to answer.
But some 18 hours after those segments ran, on Saturday afternoon, Fox carried live footage of the balloon going down over the South Carolina coast, shot out of the sky on the president’s orders. This time the footage wasn’t in dispute.
Pulling a random video from the internet and asking an official to comment is poor journalism. But I don’t see the connection with the balloon. I watched that Tucker clip posted, they point out immediately before and after showing the video that the balloon is near Kansas City, so clearly they weren’t trying to suggest this is video of it being shot down in Montana.
Pulling a random video from the internet and asking an official to comment is poor journalism. But I don’t see the connection with the balloon. I watched that Tucker clip posted, they point out immediately before and after showing the video that the balloon is near Kansas City, so clearly they weren’t trying to suggest this is video of it being shot down in Montana.
If it’s not connected to the balloon, which you admittedly don’t see, what is the faux News random internet video footage connected to?
Pulling a random video from the internet and asking an official to comment is poor journalism. But I don’t see the connection with the balloon. I watched that Tucker clip posted, they point out immediately before and after showing the video that the balloon is near Kansas City, so clearly they weren’t trying to suggest this is video of it being shot down in Montana.
If it’s not connected to the balloon, which you admittedly don’t see, what is the faux News random internet video footage connected to?
It was supposedly from Montana. He was interviewing the governor of Montana. He asked him if he knew anything about the video.
Clif Notes version: Tucker: Spy balloon is now in Kansas City. Why didn’t they shoot it down in Montana? Gov: I don’t know, if it was up to me we would have. Tucker: Here’s a random internet video. Can you comment? Gov: No, I just learned about that video 2 minutes ago Tucker: OK. Ballon is in Missouri. We should have shot it down when we had the chance in nowhere America.
Others: Tucker just said they shot the balloon down in Montana!
Pulling a random video from the internet and asking an official to comment is poor journalism. But I don’t see the connection with the balloon. I watched that Tucker clip posted, they point out immediately before and after showing the video that the balloon is near Kansas City, so clearly they weren’t trying to suggest this is video of it being shot down in Montana.
If it’s not connected to the balloon, which you admittedly don’t see, what is the faux News random internet video footage connected to?
It was supposedly from Montana. He was interviewing the governor of Montana. He asked him if he knew anything about the video.
Clif Notes version: Tucker: Spy balloon is now in Kansas City. Why didn’t they shoot it down in Montana? Gov: I don’t know, if it was up to me we would have. Tucker: Here’s a random internet video. Can you comment? Gov: No, I just learned about that video 2 minutes ago Tucker: OK. Ballon is in Missouri. We should have shot it down when we had the chance in nowhere America.
Others: Tucker just said they shot the balloon down in Montana!
Im not getting that.
Please link to your fucker Carlson “source.” As reported in WaPo regarding Faux News (pay particular attention to the quotation marks):
The governor of Montana was telling Tucker Carlson about an alleged Chinese spy balloon that wafted over his state this week, complaining that the federal government wouldn’t let him shoot it down, when the host cut in with an alarming update.
“Governor, I hate to pull random video off the internet and ask you to respond to it, but this is going around,” Carlson said Friday evening, as Twitter footage of a bright flash in the clouds over Billings, Mont., played on the Fox News split-screen. “It appears to be some social media video of an explosion over your state, showing what looks like a smoke trail in to the sky.”
Gov. Greg Gianforte (R) seemed a little caught off-guard. “I was notified just minutes before we came on the air,” he said. “We’re monitoring the situation. I’m talking to the National Guard.
Do you think the gubner of Montana should have shot it down with NG pilots or Brandon, as CIC, overriding his military?
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
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mickeyrat
up my ass, like Chadwick was up his Posts: 35,689
Court nixes Fox News' bid to end voting tech firm's suit
By JENNIFER PELTZ
30 mins ago
NEW YORK (AP) — Fox News lost an attempt Tuesday to shut down a multibillion-dollar defamation lawsuit that accuses the network of spreading lies that a voting-technology company helped “steal” the 2020 election from then-U.S. President Donald Trump.
New York's Supreme Court Appellate Division, a mid-level appeals court, ruled against the network, which wanted judges to dismiss the $2.7 billion defamation case.
The company that brought the case, Smartmatic, has said it played a valid and small role in the election. It hailed the ruling as a step toward holding Fox News accountable for amplifying unsupported and damaging claims from Trump's lawyers.
Fox News cast the case as an attempt to chill journalism, expressing confidence the network ultimately would prevail.
Tuesday's decision means Smartmatic's suit continues against Fox News, hosts Maria Bartiromo and Jeanine Pirro, former host Lou Dobbs, and Trump attorney Rudy Giuliani. A claim against Trump lawyer Sidney Powell was dismissed earlier because she doesn't have ties to New York, where the case was filed.
The five-judge ruling concluded there were “significant allegations” that Giuliani and Powell defamed the company.
“The complaint alleges in detailed fashion that in their coverage and commentary, Fox News, Dobbs, and Bartiromo effectively endorsed and participated in the statements with reckless disregard for, or serious doubts about” whether there was any reliable evidence for them, five judges wrote in a unanimous opinion. Citing “the same reasoning,” they also reinstated Smartmatic's claims against Pirro, which a lower court had thrown out.
Federal and state election officials, exhaustive reviews in battleground states and Trump’s own attorney general found no widespread fraud that could have changed the outcome of the 2020 election. Nor did they uncover any credible evidence that the vote was tainted. Trump’s allegations of fraud also were roundly rejected by dozens of courts, including by judges whom he had appointed.
Florida-based Smartmatic said that in the 2020 presidential election, its technology and software were used only in California’s Los Angeles County. The Democratic bastion went, as expected, for Democratic nominee and now-President Joe Biden.
But Smartmatic says Fox News and the three hosts repeatedly allowed Trump's lawyers to falsely portray Smartmatic as a foreign company involved in a sprawling, multi-state operation to “flip” votes to Biden from the Republican incumbent.
During a series of post-Election Day appearances, Giuliani asserted that the company had been “formed in order to fix elections.” Powell called it a “huge criminal conspiracy,” and the two claimed that proof would be forthcoming.
After Smartmatic’s lawyers demanded a retraction, Fox News aired an interview with an election technology expert who said there was no evidence that the company's technology had monkeyed with the election results. He refuted various claims that Giuliani and Powell made.
“Fox News, its news anchors and guests knowingly and falsely published lies,” Smartmatic lawyer J. Erik Connolly said in a statement Tuesday. The company maintains that the network can’t claim free speech protections for its conduct.
Fox News argues that it can, saying it was informing the public about newsworthy, if controversial, claims from an important figure about a matter of public concern.
“There is nothing more newsworthy than covering the president of the United States and his lawyers making allegations of voter fraud," the network said, adding that it was confident it would be vindicated. Fox News called the damages claim “outrageous” and "nothing more than a flagrant attempt to deter our journalists from doing their jobs.”
A message seeking comment on Tuesday's ruling was sent to Giuliani’s lawyers. They have said Giuliani's statements were protected by the First Amendment and other laws and principles.
___
Associated Press writer Randall Chase contributed from Dover, Delaware.
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
What or how does it feel to be duped and laughed at, knowing you’re a sucker to them and that they’re laughing at you? Can’t wait for POOTWH to take the stand in the defense of the Pride Boyz on trial. Suckers.
What or how does it feel to be duped and laughed at, knowing you’re a sucker to them and that they’re laughing at you? Can’t wait for POOTWH to take the stand in the defense of the Pride Boyz on trial. Suckers.
The messages also revealed that Rupert Murdoch, the chairman of Fox Corporation, did not believe Trump’s election lies and even floated the idea of having Carlson, Hannity, and Ingraham appear together in prime time to declare Joe Biden as the rightful winner of the election. Such an act, Murdoch said, “Would go a long way to stop the Trump myth that the election stolen.” The court document offered the most vivid picture to date of the chaos that transpired behind the scenes at Fox News after Trump lost the election and viewers rebelled against the right-wing channel for accurately calling the contest in Biden’s favor.
wow....I think Fox is totally fucked. There is going to be a massive settlement.
Remember the Thomas Nine !! (10/02/2018)
1998: Noblesville; 2003: Noblesville; 2009: EV Nashville, Chicago, Chicago 2010: St Louis, Columbus, Noblesville; 2011: EV Chicago, East Troy, East Troy 2013: London ON, Chicago; 2014: Cincy, St Louis, Moline (NO CODE) 2016: Lexington, Wrigley #1; 2018: Wrigley, Wrigley, Boston, Boston 2020: Oakland, Oakland:2021: EV Ohana, Ohana, Ohana, Ohana 2022: Oakland, Oakland, Nashville, Louisville; 2023: Chicago, Chicago, Noblesville
1995 Milwaukee 1998 Alpine, Alpine 2003 Albany, Boston, Boston, Boston 2004 Boston, Boston 2006 Hartford, St. Paul (Petty), St. Paul (Petty) 2011 Alpine, Alpine 2013 Wrigley 2014 St. Paul 2016 Fenway, Fenway, Wrigley, Wrigley 2018 Missoula, Wrigley, Wrigley 2021 Asbury Park 2022 St Louis 2023 Austin, Austin
and remember Tucker Carlson's connection to Hunter....they were buds
Remember the Thomas Nine !! (10/02/2018)
1998: Noblesville; 2003: Noblesville; 2009: EV Nashville, Chicago, Chicago 2010: St Louis, Columbus, Noblesville; 2011: EV Chicago, East Troy, East Troy 2013: London ON, Chicago; 2014: Cincy, St Louis, Moline (NO CODE) 2016: Lexington, Wrigley #1; 2018: Wrigley, Wrigley, Boston, Boston 2020: Oakland, Oakland:2021: EV Ohana, Ohana, Ohana, Ohana 2022: Oakland, Oakland, Nashville, Louisville; 2023: Chicago, Chicago, Noblesville
DOMINION’S BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY
JUDGMENT ON LIABILITY OF FOX NEWS NETWORK, LLC AND FOX
CORPORATION
Dated: January 17, 2022
Brian E. Farnan (Bar No. 4089)
Michael J. Farnan (Bar No. 5165) FARNAN LLP
919 N. Market St., 12th Floor Wilmington, Delaware 19801 (302) 777-0300
bfarnan@farnanlaw.com
TABLE OF CONTENTS
TABLE OF AUTHORITIES .....................................................................................v
INTRODUCTION .....................................................................................................1 FACTUAL BACKGROUND..................................................................................14 A. Dominion Voting Systems..................................................................15 B. Prior to Election Day: Setting Up the False Narrative of
Fraud....................................................................................................16 C. Fox’s Election Day Coverage and Backlash.......................................18 D. Election Fraud Conspiracy Theories Abound—and Soon
Target Dominion. ................................................................................20 E. Fox Calls the Election for Biden—and Mainstreams the False
Narrative that Dominion Rigged the Election.....................................23 F. Fox Continues to Woo Back Viewers and Goes on “War
Footing” with Newsmax......................................................................26
G. “This Dominion shit is going to give me a fucking aneurysm.”
.............................................................................................................29 H. The Pressure on Fox Grows—Even As Dominion Puts Fox
on Notice. ............................................................................................32 I. Fox Participated in the Narrative. .......................................................39 LEGAL STANDARD..............................................................................................44
ARGUMENT...........................................................................................................46 I. The Defamatory Statements Fox Published About Dominion Are
False...............................................................................................................46 A. Undisputed Evidence Proves the Falsity of Fox’s Statements.
.............................................................................................................49
Would love to hear the maga's opinions of the Fox hosts blatantly lying to them.....somehow I doubt we will hear it.
The twitter response is usually a deflection to how biased CNN and MSNBC are. I assume this is followed by continuing to believe that Trump won.
1995 Milwaukee 1998 Alpine, Alpine 2003 Albany, Boston, Boston, Boston 2004 Boston, Boston 2006 Hartford, St. Paul (Petty), St. Paul (Petty) 2011 Alpine, Alpine 2013 Wrigley 2014 St. Paul 2016 Fenway, Fenway, Wrigley, Wrigley 2018 Missoula, Wrigley, Wrigley 2021 Asbury Park 2022 St Louis 2023 Austin, Austin
Abby Normal, Loons with Balloons and EVERYBODY KNOWS IT!
This case differs from nearly any defamation case before it.
Normally
plaintiffs prove defendants’ actual malice—whether they knew it was false or “in
fact entertained serious doubts as to the truth of the statement”—“by inference, as it would be rare for a defendant to admit such doubts.” Solano v. Playgirl, Inc., 292
F.3d 1078, 1085 (9th Cir. 2002) (citation omitted).
Here, however, overwhelming
direct evidence establishes Fox’s knowledge of falsity, not just “doubts.”
Normally defamation cases involve a single defamatory statement. Here, Fox
defamed Dominion not once. Not twice. Not three times. But continually. Over a
months-long timeframe. And while defamation cases often involve matters of public
concern, the false statements here—in the words of Fox host Tucker Carlson—
“would amount to the single greatest crime in American history. Millions of votes
stolen in a day. Democracy destroyed. The end of our centuries’ old system of self-government.” Ex.170 at FNN018_02408904.
Normally defamation cases involve the state of mind of one person, or
sometimes a handful, as the law only requires that one person with editorial
responsibility have the requisite actual malice. Here, however, literally dozens of
people with editorial responsibility—from the top of the organization to the
producers of specific shows to the hosts themselves—acted with actual malice.
Normally multiple public sources, credible third parties, and governmental
agencies at all levels do not debunk the lies in real time. Here, however, they all did
so—and Fox knew about them.
Normally the plaintiff does not inform the defendant about the falsity of the
allegations during the course of the defamation itself. Here, however, Dominion repeatedly told Fox and urged it to stop publishing these “debunked” and
“completely false” claims. E.g., Ex.339; Ex.340; see, infra, §V.A.
Fox admits
Sidney Powell and her team never provided Fox with any evidence. Ex.128, Lowell
30(b)(6) 285:10-13, 286:3-13.
Dominion, by contrast, made over 3,600 separate
communications to Fox with at least a dozen separate and widely-circulated fact
check emails—each pointing to verifiable third-party information debunking the
claims. Ex.128, Lowell 30(b)(6) 544:6-13, 389:5-391:25. Fox’s research
department itself—along with multiple Fox employees—debunked these claims in
real time. See, e.g., Ex.168; Ex.160; Ex.318. No credible evidence ever existed for
these “absurd” allegations against Dominion. Ex.169 at FNN035_03890644. Fox
witness after Fox witness has admitted as much, consistent with every single
reputable third party and stacks of public record documents. See, infra, nn.12-13.
Normally a defendant does not continue to broadcast lies even after the
plaintiff sends verifiable information demonstrating their falsity. Here, however,
Fox continued to broadcast these debunked claims even after Dominion sent
notification after notification to Fox. Indeed, nineteen of the twenty accused
statements occurred after Dominion alerted Fox that these wild allegations were lies
and pointed Fox to the correct information. See, infra, §§V.A, V.D.
And normally plaintiffs in defamation cases do not move for summary
judgment of liability, let alone file a 40,000-word opening brief. Here, however, Dominion details some of the extensive record evidence demonstrating Fox’s
liability on every point—covering this months-long period involving four categories
of lies in twenty accused statements across six different shows with the active
involvement of numerous Fox Executives.
The magat response to the lies will be "so much for freedom of speech"
Remember the Thomas Nine !! (10/02/2018)
1998: Noblesville; 2003: Noblesville; 2009: EV Nashville, Chicago, Chicago 2010: St Louis, Columbus, Noblesville; 2011: EV Chicago, East Troy, East Troy 2013: London ON, Chicago; 2014: Cincy, St Louis, Moline (NO CODE) 2016: Lexington, Wrigley #1; 2018: Wrigley, Wrigley, Boston, Boston 2020: Oakland, Oakland:2021: EV Ohana, Ohana, Ohana, Ohana 2022: Oakland, Oakland, Nashville, Louisville; 2023: Chicago, Chicago, Noblesville
Fucker Carlson speaked with forked tongue! Page 19.
Fox Hosts Tucker Carlson, Laura Ingraham, and Sean Hannity immediately
understood the threat to them personally. Carlson wrote his producer Alex Pfeiffer
on November 5: “We worked really hard to build what we have. Those fuckers are
destroying our credibility. It enrages me.” Ex.199 at FNN035_03890623. He added
that he had spoken with “Laura and [S]ean a minute ago” and they are “highly
upset.” Id. at FNN035_03890624. Carlson noted: “At this point we’re getting hurt
no matter what.” Id. at FNN035_03890625. Pfeiffer responded: “It’s a hard needle
to thread, but I really think many on ‘our side’ are being reckless demagogues right
now.” Id. Tucker replied: “Of course they are. We’re not going to follow them.”
Id. And he added: “What [Trump]’s good at is destroying things. He’s the
undisputed world champion of that. He could easily destroy us if we play it wrong.”
Id. at FNN035_03890626.
Oodles of Whack-a-doodles. Seriously, if you're watching Faux, what is wrong with you? Pages 24-25.
What was the evidence for these far-fetched claims that Powell sent to
Bartiromo the day before the broadcast? An email entitled “Election Fraud Info”
Powell had received from a “source” which the author herself describes as “pretty
wackadoodle.” Ex.154 at FNN001_0000009-11. This email—also received by
Dobbs—alleged Dominion was the “one common thread” in the “voting irregularities in a number of states.” Ex.154 at FNN001_00000009; Ex.98,
Bartiromo 123:19-134:13. In addition to promoting lies about Dominion, the sender
claimed that Justice Scalia “was purposefully killed at the annual Bohemian Grove
camp…during a weeklong human hunting expedition,” and that former Fox News
CEO Roger Ailes (who died in 2017) and Rupert Murdoch “secretly huddle most
days to determine how best to portray Mr. Trump as badly as possible.” Ex.154 at
FNN001_00000010. The author continued: “Who am I? And how do I know all of
this?…I’ve had the strangest dreams since I was a little girl….I was internally
decapitated, and yet, I live….The Wind tells me I’m a ghost, but I don’t believe it.”
Id. at FNN001_00000011; Ex.98, Bartiromo 133:25-134:13. The full force of the
email’s lunacy comes across by reading it in its entirety. Ex.154.
Bartiromo agreed at her deposition that this email was “nonsense,” id. 134:11-
13, and inherently unreliable, id. 141:18-24. Yet Bartiromo (and Dobbs) never
reported on the existence of this email. Nor did Bartiromo tell her viewers about the
source of Powell’s claims or that Trump’s own Senior Advisor and son-in-law
rejected the allegations as conspiracy theories. While the claims were laughable on
their face, Bartiromo gave them credibility. As Tucker Carlson texted that night,
“[t]he software shit is absurd.…Half our viewers have seen the Maria clip.” Ex.169
at FNN035_03890644.
Ahhh, yes, the brilliant brilliance of brilliancy and "only the best people folks, only the best." Pages 34-35.
Carlson told his producer Alex Pfeiffer that night: “Sidney Powell is lying.
Fucking bitch.” Ex.150.
By November 18, Carlson told Ingraham “Sidney Powell is lying by the way.
I caught her. It’s insane.” Ex.241. Ingraham responded: “Sidney is a complete
nut. No one will work with her. Ditto with Rudy.” Id. Carlson replied: “It’s
unbelievably offensive to me. Our viewers are good people and they believe it.”
Id. at FNN035_03891092.
With the number of redactions in Dominion's libel filing, I'm beginning to think that there's information/evidence contained therein that may be relevant to an ongoing criminal investigation and/or additional lawsuits. Hmmmmmmmmmmmmmmm.
The magat response to the lies will be "so much for freedom of speech"
I know the vast bulk of them won't understand the principle but "free speech" does seem to have limits. Page 50.
Significantly, substantial truth (or substantial falsity) “refers to the content of
an allegedly defamatory statement, not the act of republishing it.” Zuckerbrot v.
Lande, 167 N.Y.S.3d 313, 334 (N.Y. Sup. Ct. 2022). In other words, Fox cannot
establish the “substantial truth” of its statements by claiming that it accurately
repeated statements that others made. Id. “[U]nder New York law, a speaker who
repeats another’s defamatory statements is not made immune from liability for
defamation merely because another person previously made the same demeaning
claim.” Watson v. NY Doe 1, 439 F. Supp. 3d 152, 161 (S.D.N.Y. 2020) (internal
quotation marks omitted). Rather, it is a “black-letter rule that one who republishes
a libel is subject to liability just as if he had published it originally, even though he
attributes the libelous statement to the original publisher, and even though he
expressly disavows the truth of the statement.” Cianci, 639 F.2d at 60-61.
Dominion Voting Systems is in big trouble after the filing by FOX News in its case with Dominion yesterday. FOX News uncovered through its discovery in the case that Dominion’s own employees expressed serious concerns about the security of its machines.
Dominion Voting Systems sued FOX News for $1.6 billion in a defamation lawsuit in March 2021. The AP reported on the suit in a very nasty and biased report.
Dominion Voting Systems filed a $1.6 billion defamation lawsuit against Fox News on Friday, arguing the cable news giant falsely claimed in an effort to boost faltering ratings that the voting company had rigged the 2020 election.
The lawsuit is part of a growing body of legal action filed by the voting company and other targets of misleading, false and bizarre claims spread by President Donald Trump and his allies in the aftermath of Trump’s election loss to Joe Biden. Those claims helped spur on rioters who stormed the U.S. Capitol on Jan. 6 in a violent siege that left five people dead, including a police officer. The siege led to Trump’s historic second impeachment.
The AP included numerous falsities and biases in its report, so much so that it looked like it was written by Dominion.
Since the 2020 Election, there has been a concerted effort by the Mainstream media to protect the results of the election and label anyone or any entity who challenges the uncertifiable results of the 2020 results as an election denier.
On Thursday, FOX News filed a brief in this case with Dominion Voting Systems. FOX News uncovered some material issues with Dominion and its voting systems. These items were so serious that Dominion employees expressed concerns about these issues.
Discovery in this case revealed that Dominion’s own employees expressed serious concerns about the security of its machines.
Mark Beckstrand, a Dominion Sales Manager, confirmed that other parties “have gotten ahold of [Dominion’s] equipment illicitly” in the past. Beckstrand identified specific instances in Georgia and North Carolina and testified that a Dominion machine was “hacked” in Michigan. Beckstrand confirmed that these security failures were “reported about in the news.”
And just weeks before the 2020 presidential election, Dominion’s Director of Product Strategy and Security, Eric Coomer, acknowledged in private that “our shit is just riddled with bugs.” Indeed, Coomer had been castigating Dominion’s failures for years. In 2019, Coomer noted that “our products suck.” He lamented that “[a]lmost all” of Dominion’s technological failings were “due to our complete f— up in installation.”
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In another instance, he identified a “*critical* bug leading to INCORRECT results.” Ex.H4, Coomer Email (Jan. 5, 2018). He went on to note: “It does not get much worse than that.” And while many companies might have resolved their errors, Coomer lamented that “we don’t address our weaknesses effectively!”
Other internal documents noted that a glitch identified by a security expert in Antrim County should be detected in the software. Coomer shared that the expert isn’t entirely wrong.
In addition, after the 2020 Election, Dominion received complaints from Georgia noting irregularities with machine counts that required employees to reprogram the machines.
Dominion Voting Systems is in big trouble after the filing by FOX News in its case with Dominion yesterday. FOX News uncovered through its discovery in the case that Dominion’s own employees expressed serious concerns about the security of its machines.
Dominion Voting Systems sued FOX News for $1.6 billion in a defamation lawsuit in March 2021. The AP reported on the suit in a very nasty and biased report.
Dominion Voting Systems filed a $1.6 billion defamation lawsuit against Fox News on Friday, arguing the cable news giant falsely claimed in an effort to boost faltering ratings that the voting company had rigged the 2020 election.
The lawsuit is part of a growing body of legal action filed by the voting company and other targets of misleading, false and bizarre claims spread by President Donald Trump and his allies in the aftermath of Trump’s election loss to Joe Biden. Those claims helped spur on rioters who stormed the U.S. Capitol on Jan. 6 in a violent siege that left five people dead, including a police officer. The siege led to Trump’s historic second impeachment.
The AP included numerous falsities and biases in its report, so much so that it looked like it was written by Dominion.
Since the 2020 Election, there has been a concerted effort by the Mainstream media to protect the results of the election and label anyone or any entity who challenges the uncertifiable results of the 2020 results as an election denier.
On Thursday, FOX News filed a brief in this case with Dominion Voting Systems. FOX News uncovered some material issues with Dominion and its voting systems. These items were so serious that Dominion employees expressed concerns about these issues.
Discovery in this case revealed that Dominion’s own employees expressed serious concerns about the security of its machines.
Mark Beckstrand, a Dominion Sales Manager, confirmed that other parties “have gotten ahold of [Dominion’s] equipment illicitly” in the past. Beckstrand identified specific instances in Georgia and North Carolina and testified that a Dominion machine was “hacked” in Michigan. Beckstrand confirmed that these security failures were “reported about in the news.”
And just weeks before the 2020 presidential election, Dominion’s Director of Product Strategy and Security, Eric Coomer, acknowledged in private that “our shit is just riddled with bugs.” Indeed, Coomer had been castigating Dominion’s failures for years. In 2019, Coomer noted that “our products suck.” He lamented that “[a]lmost all” of Dominion’s technological failings were “due to our complete f— up in installation.”
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In another instance, he identified a “*critical* bug leading to INCORRECT results.” Ex.H4, Coomer Email (Jan. 5, 2018). He went on to note: “It does not get much worse than that.” And while many companies might have resolved their errors, Coomer lamented that “we don’t address our weaknesses effectively!”
Other internal documents noted that a glitch identified by a security expert in Antrim County should be detected in the software. Coomer shared that the expert isn’t entirely wrong.
In addition, after the 2020 Election, Dominion received complaints from Georgia noting irregularities with machine counts that required employees to reprogram the machines.
Former President Donald Trump tried to call into Fox News after his supporters attacked the US Capitol on January 6, 2021, but the network refused to put him on air, according to court filings from Dominion Voting Systems in its defamation case against the company.
The House select committee that investigated the January 6 attack
did not know that Trump had made this call, according to a source
familiar with the panel’s work.
The panel sought to piece together a near minute-by-minute account of Trump’s movements,
actions and phone calls on that day. His newly revealed call to Fox
News shows some of the gaps in the record that still exist, due to
roadblocks the committee faced.
“The afternoon of January 6, after the Capitol came under attack,
then-President Trump dialed into Lou Dobbs’ show attempting to get on
air,” Dominion lawyers wrote in their legal brief.
“But Fox executives vetoed that decision,” Dominion’s filing
continued. “Why? Not because of a lack of newsworthiness. January 6 was
an important event by any measure. President Trump not only was the
sitting President, he was the key figure that day.”
The network rebuffed Trump because “it would be irresponsible to
put him on the air” and “could impact a lot of people in a negative
way,” according to Fox Business Network President Lauren Petterson,
whose testimony was cited by Dominion in the new filing.
Dobbs’ show on Fox Business – in which he routinely promoted
baseless conspiracies about the 2020 election – was canceled a few weeks
after the January 6 insurrection.
Fox News and its parent company have denied all wrongdoing and are
aggressively fighting Dominion’s defamation lawsuit. In a previous
statement, a Fox spokesperson claimed that Dominion “mischaracterized
the record” in its court filing and “cherry-picked quotes” that were
“stripped of key context.”
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Dominion Voting Systems is in big trouble after the filing by FOX News in its case with Dominion yesterday. FOX News uncovered through its discovery in the case that Dominion’s own employees expressed serious concerns about the security of its machines.
Dominion Voting Systems sued FOX News for $1.6 billion in a defamation lawsuit in March 2021. The AP reported on the suit in a very nasty and biased report.
Dominion Voting Systems filed a $1.6 billion defamation lawsuit against Fox News on Friday, arguing the cable news giant falsely claimed in an effort to boost faltering ratings that the voting company had rigged the 2020 election.
The lawsuit is part of a growing body of legal action filed by the voting company and other targets of misleading, false and bizarre claims spread by President Donald Trump and his allies in the aftermath of Trump’s election loss to Joe Biden. Those claims helped spur on rioters who stormed the U.S. Capitol on Jan. 6 in a violent siege that left five people dead, including a police officer. The siege led to Trump’s historic second impeachment.
The AP included numerous falsities and biases in its report, so much so that it looked like it was written by Dominion.
Since the 2020 Election, there has been a concerted effort by the Mainstream media to protect the results of the election and label anyone or any entity who challenges the uncertifiable results of the 2020 results as an election denier.
On Thursday, FOX News filed a brief in this case with Dominion Voting Systems. FOX News uncovered some material issues with Dominion and its voting systems. These items were so serious that Dominion employees expressed concerns about these issues.
Discovery in this case revealed that Dominion’s own employees expressed serious concerns about the security of its machines.
Mark Beckstrand, a Dominion Sales Manager, confirmed that other parties “have gotten ahold of [Dominion’s] equipment illicitly” in the past. Beckstrand identified specific instances in Georgia and North Carolina and testified that a Dominion machine was “hacked” in Michigan. Beckstrand confirmed that these security failures were “reported about in the news.”
And just weeks before the 2020 presidential election, Dominion’s Director of Product Strategy and Security, Eric Coomer, acknowledged in private that “our shit is just riddled with bugs.” Indeed, Coomer had been castigating Dominion’s failures for years. In 2019, Coomer noted that “our products suck.” He lamented that “[a]lmost all” of Dominion’s technological failings were “due to our complete f— up in installation.”
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In another instance, he identified a “*critical* bug leading to INCORRECT results.” Ex.H4, Coomer Email (Jan. 5, 2018). He went on to note: “It does not get much worse than that.” And while many companies might have resolved their errors, Coomer lamented that “we don’t address our weaknesses effectively!”
Other internal documents noted that a glitch identified by a security expert in Antrim County should be detected in the software. Coomer shared that the expert isn’t entirely wrong.
In addition, after the 2020 Election, Dominion received complaints from Georgia noting irregularities with machine counts that required employees to reprogram the machines.
Why yes, there are two sides to every story, that's true. But its also true that one side may have verifiable and irrefutable facts while the other may have conjecture, bullshit and wishful thinking. From Pages 68-73 of Dominion's filing. Pay particular attention to the words and sentences in quotes or with reference numbers after them, as they are things said and alleged in Faux News' broadcasts. I really look forward to this going to trial. And sure, Dominion is in "big trouble." More like Faux is.
e. Fox’s lack of evidence
Fox has nothing to rebut this evidence. Its corporate representative offered no
evidence of vote flipping, manipulating, dumping, adding, or deleting by Dominion
or its software and has conceded that he has not seen evidence of votes for Donald
Trump blowing up the algorithm or the vote-flipping evidence that Powell referenced on air, Ex.127, Lowell 30(b)(6) 127:6-14, 179:3-180:5, 185:19-186:5,
and conceded that Fox does not have evidence to support that Dominion had an
algorithm used to modify the votes to make sure Biden won, id. 126:5-127:5.
Indeed, Fox appears not to contest numerous statements that fall under the
algorithm lie. For example, in its responses to Dominion’s Requests for Admissions,
Fox does not contest (instead claiming it can neither admit nor deny) that “there is
not an algorithm that Dominion used and planned to use from the beginning to
modify the votes in this case to make sure Biden won,” Ex.319, No.212 (¶¶179(a, g,
j, n, o, q)); “Dominion does not allow votes to be mirrored and monitored,” id.
No.208 (¶179(g)); “Dominion did not run an algorithm that shaved votes,” id.
No.219 (¶179(m, n)); “Dominion did not use an algorithm to calculate the votes they
would need to flip and use computers to flip those votes from Trump to Biden,” id.
No.202 (¶179(a)); and “Dominion did not have algorithms that would stop the vote
count and go in and replace votes for Biden and take away Trump votes,” id. No.204
(¶179(a)); see also No.225 (admitting Trump did not “blow up” the algorithm)
(¶179(q)).
Nor could Fox credibly argue otherwise. Multiple Fox witnesses have
admitted under oath at depositions that the algorithm lie was false or lacked
evidentiary support. See, e.g., Ex.96, Andrews 31:22-32:2; Ex.111, Dobbs 87:13-25, 90:15-91:15; Ex.105, Carlson 163:21-24; Ex.121, Grossberg 263:5-10; Ex.135,
Pirro 89:3-13; Ex.146, Stirewalt 154:20-155:17; Ex.145, Smith 34:15-22, 35:14-22.
Nonetheless, Fox has said that it plans to offer evidence that “some votes were
flipped,” though Fox couldn’t say what evidence that might be. Ex.127, Lowell
30(b)(6) 53:5-13. To the extent Fox’s focus appears to be the isolated incident in
Antrim County, Michigan, that was human error by a local election official; it
caused inaccuracies in unofficial election results of the Presidential Election; and
government officials repeatedly confirmed Dominion’s system had correctly
tabulated votes. See, supra, §I.A.2.c. Michigan officials also confirmed they would
have caught the error during canvassing, if not caught earlier (as it was). See id.
But even assuming that inadvertent human error by an election official that
caused erroneous unofficial reporting constitutes “vote flipping” by Dominion, that
proposition would not avoid summary judgment on the lie that Dominion’s software
and algorithms manipulated vote counts in the 2020 Presidential Election. Fox’s
statements did not charge Dominion with merely having software susceptible to user
error that could cause inaccurate unofficial reporting. The algorithm lie is far
broader. And “[a] plea of truth as justification must be as broad as the alleged libel
and must establish the truth of the precise charge therein made.” Crane v. New York
World Telegram Corp., 308 N.Y. 470, 475 (N.Y. 1955).
Beyond asserting that Dominion flipped votes, Fox falsely stated that
Dominion designed a vote-flipping algorithm, used “backdoors” and “embedded
controllers,” and for the purpose of committing fraud monitored, flipped, added,
and/or deleted votes, and not just “some votes,” in an isolated county, but “millions”
of votes across the country. None of that is true for all the reasons explained above.
Thus, even setting aside all references to Antrim County, or even more broadly
references to “vote flipping,” the statements remain absolutely false.
Fox’s other apparent critique is that Dominion voting systems have
“vulnerabilities” that could allow a malicious actor to breach the system under some
circumstances. But that is a red herring: Dominion has not sued for defamation
about any statement asserting that Dominion voting systems had alleged
vulnerabilities. (Italics are mine in reference to the purported red underlined documents in the post to which I'm replying).
Furthermore, the existence of vulnerabilities does not cover the breadth of the
false charges in two ways. Crane, 308 N.Y. at 475. First, this category’s statements
indicated Dominion flipped votes, ¶179(e), Dominion could watch votes, ¶179(g),
Dominion notifies government officials, ¶179(g), and Dominion sent votes
overseas, ¶179(i)—all of which link supposed action by Dominion to the flipping of
votes. Security vulnerabilities that theoretically could be breached by an unknown
individual are far different, and not “as broad,” as Fox’s false charges about
Dominion.
Second, Fox did not frame the lies as a hypothetical. Unlike the assertion that
voting machines have vulnerabilities, Fox’s statements alleged manipulation
actually occurred through software, algorithms, and external control by Dominion.
For example, Sidney Powell declared on a December 10, 2020 airing of Lou Dobbs
Tonight, “We now have reams and reams of actual documents from Smartmatic and
Dominion, including evidence that they planned and executed all of this....We have
evidence of how they flipped the votes, how it was designed to flip the votes. And
that all of it has been happening just as we’ve been saying it has been.” ¶179(q).
These statements do not concern “vulnerabilities.” They revolve around the false
charge of planned and designed vote flipping that actually occurred. As Maricopa
County Recorder Stephen Richer put it when asked by Fox if “concerns” about “the
use of voter tabulation” were new in 2020: “I think we went pretty quickly from
saying crime could be a problem to person X, Y, Z to Mrs. White with the rope in
the study committed the crime.” Ex.139, Richer 108:15-22.
To be clear, as explained above, Fox has zero evidence to suggest Dominion
used its software to manipulate votes. And in particular, Fox has admitted Powell
never provided the “reams” of proof claimed on air. See Ex.128, Lowell 30(b)(6)
285:6-13; see also Ex.319, RFA No.222 (not denying that Powell lacked credible
evidence of how Dominion flipped votes). In fact, Fox host Lou Dobbs admitted that Powell did not reveal such evidence on his show or anywhere else. Ex.111,
Dobbs 269:2-271:5.
And in fact, there is zero evidence that any security breach related to
Dominion’s systems actually occurred in the 2020 Presidential Election. In fact,
Fox’s own expert Dan Wallach confirmed in a November 16, 2020 letter, signed by
himself and 58 other scientists, that there was “no credible evidence” of the claim of
rigging through exploitation of technical vulnerabilities. Ex.315 (“Merely citing the
existence of technical flaws does not establish that an attack occurred, much less that
it altered an election outcome.”). At his deposition, Professor Wallach maintained
that this letter was correct. Ex.95, Wallach 7:12-9:5.
No reasonable juror could find that Dominion or its software flipped votes in
the 2020 Presidential Election. Summary judgment of the falsity of all accused
broadcasts containing the algorithm lie, ¶¶179(a), 179(c)-179(q), is thus also proper.
What type of a legitimate "news" organization conducts itself as such? Oh, when the lead personalities own stock and are paid in stock options as part of their compensation packages. Yea, no reason there to lie to your audience. Ratings, stock value decline, you know, motive. And you have to love all the case law references to back their allegations. Pages 87-91.
V. Fox Acted with Actual Malice.
Over and over again—as the Introduction and Factual Background
demonstrate—Fox witnesses have admitted in their own words they knew the
allegations about Dominion were “false” or “crazy” or “reckless” or “nuts” or “bs.”
Yet Fox continued to broadcast them. Repeatedly. Over nearly three months.
Actual malice exists when a statement is made with “knowledge that it was
false or with reckless disregard of whether it was false or not.” Palin, 940 F.3d at
809 (internal quotation marks omitted). Of course, a plaintiff can prove actual malice “through the defendant’s own actions or statements.” Celle, 209 F.3d at 183
(internal alterations and quotation marks omitted). “The subjective determination of
whether [the defendant] in fact entertained serious doubts as to the truth of the
statement may be proved by inference, as it would be rare for a defendant to admit
such doubts.” Solano, 292 F.3d at 1085 (quoting Bose Corp. v. Consumers Union,
692 F.2d 189, 196 (1st Cir. 1982); see also Herbert v. Lando, 441 U.S. 153, 170
(1979) (noting that “plaintiffs will rarely be successful in proving awareness of
falsehood from the mouth of the defendant himself” in the context of allowing
plaintiffs to explore circumstantial evidence of knowledge of falsity). This is the
rare case where such direct evidence exists.
A plaintiff also can prove actual malice through circumstantial evidence,
rather than “from the mouth of the defendant,” because defendants “are prone to
assert their good-faith belief in the truth of their publications.” Lando, 441 U.S. at
170. Circumstantial evidence of actual malice comes in many forms. Categories of
such evidence include evidence that the defendant: (1) relied on inherently
improbable or obviously unreliable sources, see St. Amant v. Thompson, 390 U.S.
727, 732 (1968); Zuckerbrot v. Lande, 167 N.Y.S.3d 313, 335-336 (N.Y. Sup. Ct.
2022); (2) possessed a financial motive to lie about the plaintiff, see Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S. 657, 668 (1989); Gilmore v. Jones,
2021 WL 68684, at *8 (W.D. Va. Jan. 8, 2021); (2) relied on inherently improbable or obviously unreliable sources, see St. Amant, 390 U.S. at 732; Zuckerbrot v. Lande,
167 N.Y.S.3d 313, 335-336 (N.Y. Sup. Ct. 2022); (3) departed from journalistic
standards, see Harte-Hanks, 491 U.S. at 667-68; Eramo v. Rolling Stone, LLC, 209
F. Supp. 3d 862, 872 (W.D. Va. 2016); (4) conceived of the false narrative before
publication, see Palin, 940 F.3d at 813; Harris v. City of Seattle, 152 F. App’x 565,
568 (9th Cir. 2005) (unpublished); and (5) refused to retract, and continued to repeat,
statements that had been proven false, see Nunes v. Lizza, 12 F.4th 890, 900-901 (8th
Cir. 2021); Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1071-1072 (5th Cir.
1987). See generally Restatement (Second) of Torts §580A cmt. (d). No one factor
need be conclusive, and actual malice can be demonstrated by the “accumulation”
of circumstantial evidence. Celle, 209 F.3d at 183; see Stern v. Cosby, 645 F. Supp.
2d 258, 278 (S.D.N.Y. 2009).
An organizational defendant, just like any other, is subject to liability when it
acts with actual malice. Because an organization necessarily acts through
individuals, in such cases, “the state of mind required for actual malice” must “be
brought home to the persons in the [defendant’s] organization having responsibility
for the publication.” Sullivan, 376 U.S. at 287. This requirement, which stems from
Sullivan itself, prevents the imposition of liability against a corporate entity solely
because some person, somewhere within a vast media organization, possesses
knowledge that contradicts the defamatory allegations. Id. (concluding that the “mere presence” of news stories in the Times’ files that contradicted details in the
accused advertisement did not establish actual malice, as no individual responsible
for the advertisement copy would have had knowledge of the prior news stories).
But so long as actual malice is brought home to “at least” one individual who is
responsible for the publication of the defamatory statement, the actual malice
requirement is satisfied. Page v. Oath Inc., 270 A.3d 833, 850 (Del. 2022); see also
Solano, 292 F.3d at 1086 (editorial staff members’ concerns about defamatory
statements satisfied actual malice even if staffers were not “the final decisionmakers
as to the content”).
As discussed extensively in the Introduction and Factual Background, supra,
this case is the rare defamation case with extensive direct evidence of actual malice.
The very fact that Fox understood it had to “thread the needle” of appeasing viewers
on the one hand, and not spreading election fraud conspiracy theories on the other,
demonstrates that Fox knew these claims about Dominion were false. Ex.252.(Three lines redacted). Ex.330. Fox’s many, many
other documents and testimony all confirm the same.
Section A below establishes that Fox had the facts necessary to debunk the
accused statements about Dominion, from extensive public record sources and direct communications from Dominion pointing to that evidence, and Fox either
knowingly or recklessly disregarded those facts.
Section Bexplains how individuals throughout Fox’s organization knew the
statements were false, illustrating at minimum the reckless disregard of their
colleagues who nevertheless broadcast those lies. Together, parts A and B
sufficiently establish Fox’s actual malice; but the evidence does not stop there.
Section C discusses the executives responsible for the accused programs’
knowledge or reckless disregard of the truth, and Section D walks through the team
of hosts and producers, as well as the aforementioned executives, responsible for
each program and highlights additional evidence—on top of what has already been
set forth in the Factual Background above and Sections A and B below—
demonstrating they likewise knew or recklessly disregarded the truth.
Though unnecessary in light of the overwhelming evidence in Sections A
and B, plus the additional evidence in Sections C and D, Section E provides
circumstantial evidence further underscoring Fox’s actual malice.
Actual malice requires knowledge of falsity or reckless disregard by any one
of the people sharing responsibility for a broadcast. Page, 270 A.3d at 850; Solano,
292 F.3d at 1086; Speer v. Ottaway Newspapers, Inc., 828 F.2d 475, 477 (8th Cir.
1987). Here, every person acted with actual malice.
Comments
A Twitter video doesn’t show the balloon exploding, but Fox aired it anyway
The governor of Montana was telling Tucker Carlson about an alleged Chinese spy balloon that wafted over his state this week, complaining that the federal government wouldn’t let him shoot it down, when the host cut in with an alarming update.
“Governor, I hate to pull random video off the internet and ask you to respond to it, but this is going around,” Carlson said Friday evening, as Twitter footage of a bright flash in the clouds over Billings, Mont., played on the Fox News split-screen. “It appears to be some social media video of an explosion over your state, showing what looks like a smoke trail in to the sky.”
Gov. Greg Gianforte (R) seemed a little caught off-guard. “I was notified just minutes before we came on the air,” he said. “We’re monitoring the situation. I’m talking to the National Guard.
He needn’t have bothered them. Within two hours of Billings resident Dolly Moore’s viral report on Twitter — “I saw a jet go by so fast and then explosion in the sky. Holy crap!,” she wrote below her video — the city and the National Weather Service had debunked it. Whether the balloon is a weather sensor gone astray or a surveillance device for the Chinese government, it was still drifting peacefully 60,000 feet above the Earth. It wouldn’t fall until the following afternoon, when a U.S. military aircraft shot it down over the Atlantic coast.
But those facts did little to dissuade the tide of misinformation and speculation that followed in the balloon’s path — or the horde of journalists thirsty for any footage of the mysterious device over the weekend, many of whom asked Moore for permission to put her video on the news, and only later determined it had no business being there.
The media, and seemingly the entire country, had spent a full day tracking the balloon, which the U.S. government says is a spy device sent from China, by 7 p.m. Eastern time on Friday, when Moore tweeted “what I just caught [a] few minutes ago out my window” in Billings and sparked a brand new frenzy.
Journalists representing Fox News, CNN, the New York Times, broadcast networks and myriad local stations slid into her replies, asking for permission to use her video in the same legalistic language with which reporters typically beg for amateur footage of natural disasters and wars.
“My son finally had to take my phone,” Moore told Billings’s KULR-TV in an interview that aired Friday.
By then, many of the journalists who had rushed to her video were having second thoughts.
The Washington Post called the National Weather Service on Friday night, and was told by meteorologist Shawn Palmquist that the agency had not received any reports of explosions or plane crashes near Billings. “We think it’s a contrail from a jet,” he said of the so-called smoke trail in Moore’s video. “I couldn’t speculate on anything further than that.”
Kerem Inal, an ABC News visual verification producer who had asked Moore for permission to use the footage less than 30 minutes after it was tweeted, posted a Twitter thread early Saturday morning explaining why his network backed off.
What to know about the suspected Chinese spy balloon
“Although I don’t think the video was fake, without the necessary information to verify what we were seeing, our advice was to not use the video,” Inal wrote, explaining that the balloon was more than 900 miles from Moore’s location at the time she took the footage. “It falls on us, journalists, to make sure all the pieces of the puzzle fit, before amplifying information,” he added.
The Post could find no indication that CNN, the Times or other major outlets that Moore gave permission to use her video ultimately did so. But Fox aired it twice.
“MASSIVE EXPLOSION OVER MONTANA” ran across the bottom of the screen at one point Friday evening, as host Jesse Watters ran Moore’s video and exclaimed, “Wow.” At almost the same time Tucker Carlson was asking Gianforte about the video on his own show, a Fox News producer was trying to set the record straight, tweeting that military officials had told a network correspondent that “videos purporting to show the balloon exploding are not real.”
Shortly after 9 p.m., the city of Billings announced on Twitter that Gianforte and Montana’s disaster and emergency services office confirmed there had been no explosions in the state. “They are aware of the video and it cannot be substantiated,” the city wrote.
It took many hours, however, for those denials to make it into an online article in the Daily Mail that managed to embellish on Moore’s tweets. Multiple “witnesses” had seen the “explosion in the sky,” the tabloid wrote (though none besides Moore were cited). “Mysterious video of the aftermath shows a trail of smoke in the sky where the balloon was last spotted.” The Daily Mail did not immediately respond to a request for comment Saturday afternoon, but the article was updated shortly afterward, removing some erroneous language and adding that authorities “confirmed the video is a hoax.”
Predictably, a stew of conspiracy theories bubbled up in reader comments beneath the article, and across the internet. Some thought the Chinese government had paid President Biden to not disturb the balloon. Others thought he was about to shoot it down and trigger nuclear war. Some said the balloon was carrying a deadly virus. Others said there was no balloon at all.
Nadine Ajaka, The Post’s executive producer of visual forensics, said authenticating amateur videos typically begins with verifying the source’s identity and requesting the original file, which can include metadata that proves when and where the video was filmed. But if the original source isn’t responsive, video forensics analysts have other methods of geolocating a video.
“We’ll look at identifying landmarks or other details in the image, and cross-reference it with other tools like Google Earth,” Ajaka said. “Or if there are several videos of the same incident, we’ll be able to place that video in time and space.”
Like most of its competitors, The Post elected not to report on Moore’s video Friday evening.
Asked whether Fox News planned to run corrections on its segments, a network spokesperson declined to answer.
But some 18 hours after those segments ran, on Saturday afternoon, Fox carried live footage of the balloon going down over the South Carolina coast, shot out of the sky on the president’s orders. This time the footage wasn’t in dispute.
Justine McDaniel contributed to
https://www.washingtonpost.com/media/2023/02/04/billings-montanta-explosion-video-fox/
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I watched that Tucker clip posted, they point out immediately before and after showing the video that the balloon is near Kansas City, so clearly they weren’t trying to suggest this is video of it being shot down in Montana.
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Tucker: Spy balloon is now in Kansas City. Why didn’t they shoot it down in Montana?
Gov: I don’t know, if it was up to me we would have.
Tucker: Here’s a random internet video. Can you comment?
Gov: No, I just learned about that video 2 minutes ago
Tucker: OK. Ballon is in Missouri. We should have shot it down when we had the chance in nowhere America.
Others: Tucker just said they shot the balloon down in Montana!
Im not getting that.
The governor of Montana was telling Tucker Carlson about an alleged Chinese spy balloon that wafted over his state this week, complaining that the federal government wouldn’t let him shoot it down, when the host cut in with an alarming update.
“Governor, I hate to pull random video off the internet and ask you to respond to it, but this is going around,” Carlson said Friday evening, as Twitter footage of a bright flash in the clouds over Billings, Mont., played on the Fox News split-screen. “It appears to be some social media video of an explosion over your state, showing what looks like a smoke trail in to the sky.”
Gov. Greg Gianforte (R) seemed a little caught off-guard. “I was notified just minutes before we came on the air,” he said. “We’re monitoring the situation. I’m talking to the National Guard.
Do you think the gubner of Montana should have shot it down with NG pilots or Brandon, as CIC, overriding his military?
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you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
NEW YORK (AP) — Fox News lost an attempt Tuesday to shut down a multibillion-dollar defamation lawsuit that accuses the network of spreading lies that a voting-technology company helped “steal” the 2020 election from then-U.S. President Donald Trump.
New York's Supreme Court Appellate Division, a mid-level appeals court, ruled against the network, which wanted judges to dismiss the $2.7 billion defamation case.
The company that brought the case, Smartmatic, has said it played a valid and small role in the election. It hailed the ruling as a step toward holding Fox News accountable for amplifying unsupported and damaging claims from Trump's lawyers.
Fox News cast the case as an attempt to chill journalism, expressing confidence the network ultimately would prevail.
Tuesday's decision means Smartmatic's suit continues against Fox News, hosts Maria Bartiromo and Jeanine Pirro, former host Lou Dobbs, and Trump attorney Rudy Giuliani. A claim against Trump lawyer Sidney Powell was dismissed earlier because she doesn't have ties to New York, where the case was filed.
The five-judge ruling concluded there were “significant allegations” that Giuliani and Powell defamed the company.
“The complaint alleges in detailed fashion that in their coverage and commentary, Fox News, Dobbs, and Bartiromo effectively endorsed and participated in the statements with reckless disregard for, or serious doubts about” whether there was any reliable evidence for them, five judges wrote in a unanimous opinion. Citing “the same reasoning,” they also reinstated Smartmatic's claims against Pirro, which a lower court had thrown out.
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Federal and state election officials, exhaustive reviews in battleground states and Trump’s own attorney general found no widespread fraud that could have changed the outcome of the 2020 election. Nor did they uncover any credible evidence that the vote was tainted. Trump’s allegations of fraud also were roundly rejected by dozens of courts, including by judges whom he had appointed.
The ruling comes as Fox News fights a separate, $1.6 billion defamation lawsuit from Denver-based Dominion Voting Systems, with a trial date in April. The network also is fighting lawsuit from a Venezuelan businessman who said he was wrongly accused of trying to corrupt the election.
Florida-based Smartmatic said that in the 2020 presidential election, its technology and software were used only in California’s Los Angeles County. The Democratic bastion went, as expected, for Democratic nominee and now-President Joe Biden.
But Smartmatic says Fox News and the three hosts repeatedly allowed Trump's lawyers to falsely portray Smartmatic as a foreign company involved in a sprawling, multi-state operation to “flip” votes to Biden from the Republican incumbent.
During a series of post-Election Day appearances, Giuliani asserted that the company had been “formed in order to fix elections.” Powell called it a “huge criminal conspiracy,” and the two claimed that proof would be forthcoming.
After Smartmatic’s lawyers demanded a retraction, Fox News aired an interview with an election technology expert who said there was no evidence that the company's technology had monkeyed with the election results. He refuted various claims that Giuliani and Powell made.
“Fox News, its news anchors and guests knowingly and falsely published lies,” Smartmatic lawyer J. Erik Connolly said in a statement Tuesday. The company maintains that the network can’t claim free speech protections for its conduct.
Fox News argues that it can, saying it was informing the public about newsworthy, if controversial, claims from an important figure about a matter of public concern.
“There is nothing more newsworthy than covering the president of the United States and his lawyers making allegations of voter fraud," the network said, adding that it was confident it would be vindicated. Fox News called the damages claim “outrageous” and "nothing more than a flagrant attempt to deter our journalists from doing their jobs.”
A message seeking comment on Tuesday's ruling was sent to Giuliani’s lawyers. They have said Giuliani's statements were protected by the First Amendment and other laws and principles.
___
Associated Press writer Randall Chase contributed from Dover, Delaware.
Not today Sir, Probably not tomorrow.............................................. bayfront arena st. pete '94
you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
https://www.cnn.com/2023/02/16/media/fox-news-stars-executives-court-documents/index.html
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Such an act, Murdoch said, “Would go a long way to stop the Trump myth that the election stolen.”
The court document offered the most vivid picture to date of the chaos that transpired behind the scenes at Fox News after Trump lost the election and viewers rebelled against the right-wing channel for accurately calling the contest in Biden’s favor.
wow....I think Fox is totally fucked. There is going to be a massive settlement.
1998: Noblesville; 2003: Noblesville; 2009: EV Nashville, Chicago, Chicago
2010: St Louis, Columbus, Noblesville; 2011: EV Chicago, East Troy, East Troy
2013: London ON, Chicago; 2014: Cincy, St Louis, Moline (NO CODE)
2016: Lexington, Wrigley #1; 2018: Wrigley, Wrigley, Boston, Boston
2020: Oakland, Oakland: 2021: EV Ohana, Ohana, Ohana, Ohana
2022: Oakland, Oakland, Nashville, Louisville; 2023: Chicago, Chicago, Noblesville
2013 Wrigley 2014 St. Paul 2016 Fenway, Fenway, Wrigley, Wrigley 2018 Missoula, Wrigley, Wrigley 2021 Asbury Park 2022 St Louis 2023 Austin, Austin
1998: Noblesville; 2003: Noblesville; 2009: EV Nashville, Chicago, Chicago
2010: St Louis, Columbus, Noblesville; 2011: EV Chicago, East Troy, East Troy
2013: London ON, Chicago; 2014: Cincy, St Louis, Moline (NO CODE)
2016: Lexington, Wrigley #1; 2018: Wrigley, Wrigley, Boston, Boston
2020: Oakland, Oakland: 2021: EV Ohana, Ohana, Ohana, Ohana
2022: Oakland, Oakland, Nashville, Louisville; 2023: Chicago, Chicago, Noblesville
59b93674-ba03-4bc1-94da-5e15f776fc43.pdf (washingtonpost.com)
DOMINION’S BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT ON LIABILITY OF FOX NEWS NETWORK, LLC AND FOX CORPORATION
Dated: January 17, 2022
Brian E. Farnan (Bar No. 4089) Michael J. Farnan (Bar No. 5165)
FARNAN LLP 919 N. Market St., 12th Floor
Wilmington, Delaware 19801
(302) 777-0300 bfarnan@farnanlaw.com
TABLE OF CONTENTS TABLE OF AUTHORITIES .....................................................................................v
INTRODUCTION .....................................................................................................1
FACTUAL BACKGROUND..................................................................................14
A. Dominion Voting Systems..................................................................15
B. Prior to Election Day: Setting Up the False Narrative of Fraud....................................................................................................16
C. Fox’s Election Day Coverage and Backlash.......................................18
D. Election Fraud Conspiracy Theories Abound—and Soon Target Dominion. ................................................................................20
E. Fox Calls the Election for Biden—and Mainstreams the False Narrative that Dominion Rigged the Election.....................................23
F. Fox Continues to Woo Back Viewers and Goes on “War Footing” with Newsmax......................................................................26
G. “This Dominion shit is going to give me a fucking aneurysm.” .............................................................................................................29
H. The Pressure on Fox Grows—Even As Dominion Puts Fox on Notice. ............................................................................................32
I. Fox Participated in the Narrative. .......................................................39
LEGAL STANDARD..............................................................................................44 ARGUMENT...........................................................................................................46
I. The Defamatory Statements Fox Published About Dominion Are False...............................................................................................................46
A. Undisputed Evidence Proves the Falsity of Fox’s Statements. .............................................................................................................49
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This case differs from nearly any defamation case before it.
Normally plaintiffs prove defendants’ actual malice—whether they knew it was false or “in fact entertained serious doubts as to the truth of the statement”—“by inference, as it would be rare for a defendant to admit such doubts.” Solano v. Playgirl, Inc., 292 F.3d 1078, 1085 (9th Cir. 2002) (citation omitted).
Here, however, overwhelming direct evidence establishes Fox’s knowledge of falsity, not just “doubts.”
Normally defamation cases involve a single defamatory statement. Here, Fox defamed Dominion not once. Not twice. Not three times. But continually. Over a months-long timeframe. And while defamation cases often involve matters of public concern, the false statements here—in the words of Fox host Tucker Carlson— “would amount to the single greatest crime in American history. Millions of votes stolen in a day. Democracy destroyed. The end of our centuries’ old system of self-government.” Ex.170 at FNN018_02408904.
Normally defamation cases involve the state of mind of one person, or sometimes a handful, as the law only requires that one person with editorial responsibility have the requisite actual malice. Here, however, literally dozens of people with editorial responsibility—from the top of the organization to the producers of specific shows to the hosts themselves—acted with actual malice.
Normally multiple public sources, credible third parties, and governmental agencies at all levels do not debunk the lies in real time. Here, however, they all did so—and Fox knew about them. Normally the plaintiff does not inform the defendant about the falsity of the allegations during the course of the defamation itself. Here, however, Dominion repeatedly told Fox and urged it to stop publishing these “debunked” and “completely false” claims. E.g., Ex.339; Ex.340; see, infra, §V.A.
Fox admits Sidney Powell and her team never provided Fox with any evidence. Ex.128, Lowell 30(b)(6) 285:10-13, 286:3-13.
Dominion, by contrast, made over 3,600 separate communications to Fox with at least a dozen separate and widely-circulated fact check emails—each pointing to verifiable third-party information debunking the claims. Ex.128, Lowell 30(b)(6) 544:6-13, 389:5-391:25. Fox’s research department itself—along with multiple Fox employees—debunked these claims in real time. See, e.g., Ex.168; Ex.160; Ex.318. No credible evidence ever existed for these “absurd” allegations against Dominion. Ex.169 at FNN035_03890644. Fox witness after Fox witness has admitted as much, consistent with every single reputable third party and stacks of public record documents. See, infra, nn.12-13.
Normally a defendant does not continue to broadcast lies even after the plaintiff sends verifiable information demonstrating their falsity. Here, however, Fox continued to broadcast these debunked claims even after Dominion sent notification after notification to Fox. Indeed, nineteen of the twenty accused statements occurred after Dominion alerted Fox that these wild allegations were lies and pointed Fox to the correct information. See, infra, §§V.A, V.D.
And normally plaintiffs in defamation cases do not move for summary judgment of liability, let alone file a 40,000-word opening brief. Here, however, Dominion details some of the extensive record evidence demonstrating Fox’s liability on every point—covering this months-long period involving four categories of lies in twenty accused statements across six different shows with the active involvement of numerous Fox Executives.
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2010: St Louis, Columbus, Noblesville; 2011: EV Chicago, East Troy, East Troy
2013: London ON, Chicago; 2014: Cincy, St Louis, Moline (NO CODE)
2016: Lexington, Wrigley #1; 2018: Wrigley, Wrigley, Boston, Boston
2020: Oakland, Oakland: 2021: EV Ohana, Ohana, Ohana, Ohana
2022: Oakland, Oakland, Nashville, Louisville; 2023: Chicago, Chicago, Noblesville
Fox Hosts Tucker Carlson, Laura Ingraham, and Sean Hannity immediately understood the threat to them personally. Carlson wrote his producer Alex Pfeiffer on November 5: “We worked really hard to build what we have. Those fuckers are destroying our credibility. It enrages me.” Ex.199 at FNN035_03890623. He added that he had spoken with “Laura and [S]ean a minute ago” and they are “highly upset.” Id. at FNN035_03890624. Carlson noted: “At this point we’re getting hurt no matter what.” Id. at FNN035_03890625. Pfeiffer responded: “It’s a hard needle to thread, but I really think many on ‘our side’ are being reckless demagogues right now.” Id. Tucker replied: “Of course they are. We’re not going to follow them.” Id. And he added: “What [Trump]’s good at is destroying things. He’s the undisputed world champion of that. He could easily destroy us if we play it wrong.” Id. at FNN035_03890626.
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What was the evidence for these far-fetched claims that Powell sent to Bartiromo the day before the broadcast? An email entitled “Election Fraud Info” Powell had received from a “source” which the author herself describes as “pretty wackadoodle.” Ex.154 at FNN001_0000009-11. This email—also received by Dobbs—alleged Dominion was the “one common thread” in the “voting irregularities in a number of states.” Ex.154 at FNN001_00000009; Ex.98, Bartiromo 123:19-134:13. In addition to promoting lies about Dominion, the sender claimed that Justice Scalia “was purposefully killed at the annual Bohemian Grove camp…during a weeklong human hunting expedition,” and that former Fox News CEO Roger Ailes (who died in 2017) and Rupert Murdoch “secretly huddle most days to determine how best to portray Mr. Trump as badly as possible.” Ex.154 at FNN001_00000010. The author continued: “Who am I? And how do I know all of this?…I’ve had the strangest dreams since I was a little girl….I was internally decapitated, and yet, I live….The Wind tells me I’m a ghost, but I don’t believe it.” Id. at FNN001_00000011; Ex.98, Bartiromo 133:25-134:13. The full force of the email’s lunacy comes across by reading it in its entirety. Ex.154.
Bartiromo agreed at her deposition that this email was “nonsense,” id. 134:11- 13, and inherently unreliable, id. 141:18-24. Yet Bartiromo (and Dobbs) never reported on the existence of this email. Nor did Bartiromo tell her viewers about the source of Powell’s claims or that Trump’s own Senior Advisor and son-in-law rejected the allegations as conspiracy theories. While the claims were laughable on their face, Bartiromo gave them credibility. As Tucker Carlson texted that night, “[t]he software shit is absurd.…Half our viewers have seen the Maria clip.” Ex.169 at FNN035_03890644.
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Carlson told his producer Alex Pfeiffer that night: “Sidney Powell is lying. Fucking bitch.” Ex.150.
By November 18, Carlson told Ingraham “Sidney Powell is lying by the way. I caught her. It’s insane.” Ex.241. Ingraham responded: “Sidney is a complete nut. No one will work with her. Ditto with Rudy.” Id. Carlson replied: “It’s unbelievably offensive to me. Our viewers are good people and they believe it.” Id. at FNN035_03891092.
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Significantly, substantial truth (or substantial falsity) “refers to the content of an allegedly defamatory statement, not the act of republishing it.” Zuckerbrot v. Lande, 167 N.Y.S.3d 313, 334 (N.Y. Sup. Ct. 2022). In other words, Fox cannot establish the “substantial truth” of its statements by claiming that it accurately repeated statements that others made. Id. “[U]nder New York law, a speaker who repeats another’s defamatory statements is not made immune from liability for defamation merely because another person previously made the same demeaning claim.” Watson v. NY Doe 1, 439 F. Supp. 3d 152, 161 (S.D.N.Y. 2020) (internal quotation marks omitted). Rather, it is a “black-letter rule that one who republishes a libel is subject to liability just as if he had published it originally, even though he attributes the libelous statement to the original publisher, and even though he expressly disavows the truth of the statement.” Cianci, 639 F.2d at 60-61.
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There are 2 sides to every story:
Dominion Voting Systems is in big trouble after the filing by FOX News in its case with Dominion yesterday. FOX News uncovered through its discovery in the case that Dominion’s own employees expressed serious concerns about the security of its machines.
Dominion Voting Systems sued FOX News for $1.6 billion in a defamation lawsuit in March 2021. The AP reported on the suit in a very nasty and biased report.
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The AP shared:
The AP included numerous falsities and biases in its report, so much so that it looked like it was written by Dominion.
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Since the 2020 Election, there has been a concerted effort by the Mainstream media to protect the results of the election and label anyone or any entity who challenges the uncertifiable results of the 2020 results as an election denier.
On Thursday, FOX News filed a brief in this case with Dominion Voting Systems. FOX News uncovered some material issues with Dominion and its voting systems. These items were so serious that Dominion employees expressed concerns about these issues.
Discovery in this case revealed that Dominion’s own employees expressed serious concerns about the security of its machines.
Mark Beckstrand, a Dominion Sales Manager, confirmed that other parties “have gotten ahold of [Dominion’s] equipment illicitly” in the past. Beckstrand identified specific instances in Georgia and North Carolina and testified that a Dominion machine was “hacked” in Michigan. Beckstrand confirmed that these security failures were “reported about in the news.”
And just weeks before the 2020 presidential election, Dominion’s Director of Product Strategy and Security, Eric Coomer, acknowledged in private that “our shit is just riddled with bugs.” Indeed, Coomer had been castigating Dominion’s failures for years. In 2019, Coomer noted that “our products suck.” He lamented that “[a]lmost all” of Dominion’s technological failings were “due to our complete f— up in installation.”
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In another instance, he identified a “*critical* bug leading to INCORRECT results.” Ex.H4, Coomer Email (Jan. 5, 2018). He went on to note: “It does not get much worse than that.” And while many companies might have resolved their errors, Coomer lamented that “we don’t address our weaknesses effectively!”
Other internal documents noted that a glitch identified by a security expert in Antrim County should be detected in the software. Coomer shared that the expert isn’t entirely wrong.
In addition, after the 2020 Election, Dominion received complaints from Georgia noting irregularities with machine counts that required employees to reprogram the machines.
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See entire filling below:
Redacted Public Version FNN… by Jim Hoft
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Fox News executives refused to let Trump on-air when he called in during January 6 attack, Dominion says
Former President Donald Trump tried to call into Fox News after his supporters attacked the US Capitol on January 6, 2021, but the network refused to put him on air, according to court filings from Dominion Voting Systems in its defamation case against the company.
The House select committee that investigated the January 6 attack did not know that Trump had made this call, according to a source familiar with the panel’s work.
The panel sought to piece together a near minute-by-minute account of Trump’s movements, actions and phone calls on that day. His newly revealed call to Fox News shows some of the gaps in the record that still exist, due to roadblocks the committee faced.
“The afternoon of January 6, after the Capitol came under attack, then-President Trump dialed into Lou Dobbs’ show attempting to get on air,” Dominion lawyers wrote in their legal brief.
“But Fox executives vetoed that decision,” Dominion’s filing continued. “Why? Not because of a lack of newsworthiness. January 6 was an important event by any measure. President Trump not only was the sitting President, he was the key figure that day.”
The network rebuffed Trump because “it would be irresponsible to put him on the air” and “could impact a lot of people in a negative way,” according to Fox Business Network President Lauren Petterson, whose testimony was cited by Dominion in the new filing.
Dobbs’ show on Fox Business – in which he routinely promoted baseless conspiracies about the 2020 election – was canceled a few weeks after the January 6 insurrection.
Fox News and its parent company have denied all wrongdoing and are aggressively fighting Dominion’s defamation lawsuit. In a previous statement, a Fox spokesperson claimed that Dominion “mischaracterized the record” in its court filing and “cherry-picked quotes” that were “stripped of key context.”
continues.....
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you're finally here and I'm a mess................................................... nationwide arena columbus '10
memories like fingerprints are slowly raising.................................... first niagara center buffalo '13
another man ..... moved by sleight of hand...................................... joe louis arena detroit '14
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e. Fox’s lack of evidence
Fox has nothing to rebut this evidence. Its corporate representative offered no evidence of vote flipping, manipulating, dumping, adding, or deleting by Dominion or its software and has conceded that he has not seen evidence of votes for Donald Trump blowing up the algorithm or the vote-flipping evidence that Powell referenced on air, Ex.127, Lowell 30(b)(6) 127:6-14, 179:3-180:5, 185:19-186:5, and conceded that Fox does not have evidence to support that Dominion had an algorithm used to modify the votes to make sure Biden won, id. 126:5-127:5.
Indeed, Fox appears not to contest numerous statements that fall under the algorithm lie. For example, in its responses to Dominion’s Requests for Admissions, Fox does not contest (instead claiming it can neither admit nor deny) that “there is not an algorithm that Dominion used and planned to use from the beginning to modify the votes in this case to make sure Biden won,” Ex.319, No.212 (¶¶179(a, g, j, n, o, q)); “Dominion does not allow votes to be mirrored and monitored,” id. No.208 (¶179(g)); “Dominion did not run an algorithm that shaved votes,” id. No.219 (¶179(m, n)); “Dominion did not use an algorithm to calculate the votes they would need to flip and use computers to flip those votes from Trump to Biden,” id. No.202 (¶179(a)); and “Dominion did not have algorithms that would stop the vote count and go in and replace votes for Biden and take away Trump votes,” id. No.204 (¶179(a)); see also No.225 (admitting Trump did not “blow up” the algorithm) (¶179(q)).
Nor could Fox credibly argue otherwise. Multiple Fox witnesses have admitted under oath at depositions that the algorithm lie was false or lacked evidentiary support. See, e.g., Ex.96, Andrews 31:22-32:2; Ex.111, Dobbs 87:13-25, 90:15-91:15; Ex.105, Carlson 163:21-24; Ex.121, Grossberg 263:5-10; Ex.135, Pirro 89:3-13; Ex.146, Stirewalt 154:20-155:17; Ex.145, Smith 34:15-22, 35:14-22.
Nonetheless, Fox has said that it plans to offer evidence that “some votes were flipped,” though Fox couldn’t say what evidence that might be. Ex.127, Lowell 30(b)(6) 53:5-13. To the extent Fox’s focus appears to be the isolated incident in Antrim County, Michigan, that was human error by a local election official; it caused inaccuracies in unofficial election results of the Presidential Election; and government officials repeatedly confirmed Dominion’s system had correctly tabulated votes. See, supra, §I.A.2.c. Michigan officials also confirmed they would have caught the error during canvassing, if not caught earlier (as it was). See id.
But even assuming that inadvertent human error by an election official that caused erroneous unofficial reporting constitutes “vote flipping” by Dominion, that proposition would not avoid summary judgment on the lie that Dominion’s software and algorithms manipulated vote counts in the 2020 Presidential Election. Fox’s statements did not charge Dominion with merely having software susceptible to user error that could cause inaccurate unofficial reporting. The algorithm lie is far broader. And “[a] plea of truth as justification must be as broad as the alleged libel and must establish the truth of the precise charge therein made.” Crane v. New York World Telegram Corp., 308 N.Y. 470, 475 (N.Y. 1955).
Beyond asserting that Dominion flipped votes, Fox falsely stated that Dominion designed a vote-flipping algorithm, used “backdoors” and “embedded controllers,” and for the purpose of committing fraud monitored, flipped, added, and/or deleted votes, and not just “some votes,” in an isolated county, but “millions” of votes across the country. None of that is true for all the reasons explained above. Thus, even setting aside all references to Antrim County, or even more broadly references to “vote flipping,” the statements remain absolutely false.
Fox’s other apparent critique is that Dominion voting systems have “vulnerabilities” that could allow a malicious actor to breach the system under some circumstances. But that is a red herring: Dominion has not sued for defamation about any statement asserting that Dominion voting systems had alleged vulnerabilities. (Italics are mine in reference to the purported red underlined documents in the post to which I'm replying).
Furthermore, the existence of vulnerabilities does not cover the breadth of the false charges in two ways. Crane, 308 N.Y. at 475. First, this category’s statements indicated Dominion flipped votes, ¶179(e), Dominion could watch votes, ¶179(g), Dominion notifies government officials, ¶179(g), and Dominion sent votes overseas, ¶179(i)—all of which link supposed action by Dominion to the flipping of votes. Security vulnerabilities that theoretically could be breached by an unknown individual are far different, and not “as broad,” as Fox’s false charges about Dominion.
Second, Fox did not frame the lies as a hypothetical. Unlike the assertion that voting machines have vulnerabilities, Fox’s statements alleged manipulation actually occurred through software, algorithms, and external control by Dominion. For example, Sidney Powell declared on a December 10, 2020 airing of Lou Dobbs Tonight, “We now have reams and reams of actual documents from Smartmatic and Dominion, including evidence that they planned and executed all of this....We have evidence of how they flipped the votes, how it was designed to flip the votes. And that all of it has been happening just as we’ve been saying it has been.” ¶179(q). These statements do not concern “vulnerabilities.” They revolve around the false charge of planned and designed vote flipping that actually occurred. As Maricopa County Recorder Stephen Richer put it when asked by Fox if “concerns” about “the use of voter tabulation” were new in 2020: “I think we went pretty quickly from saying crime could be a problem to person X, Y, Z to Mrs. White with the rope in the study committed the crime.” Ex.139, Richer 108:15-22.
To be clear, as explained above, Fox has zero evidence to suggest Dominion used its software to manipulate votes. And in particular, Fox has admitted Powell never provided the “reams” of proof claimed on air. See Ex.128, Lowell 30(b)(6) 285:6-13; see also Ex.319, RFA No.222 (not denying that Powell lacked credible evidence of how Dominion flipped votes). In fact, Fox host Lou Dobbs admitted that Powell did not reveal such evidence on his show or anywhere else. Ex.111, Dobbs 269:2-271:5.
And in fact, there is zero evidence that any security breach related to Dominion’s systems actually occurred in the 2020 Presidential Election. In fact, Fox’s own expert Dan Wallach confirmed in a November 16, 2020 letter, signed by himself and 58 other scientists, that there was “no credible evidence” of the claim of rigging through exploitation of technical vulnerabilities. Ex.315 (“Merely citing the existence of technical flaws does not establish that an attack occurred, much less that it altered an election outcome.”). At his deposition, Professor Wallach maintained that this letter was correct. Ex.95, Wallach 7:12-9:5.
No reasonable juror could find that Dominion or its software flipped votes in the 2020 Presidential Election. Summary judgment of the falsity of all accused broadcasts containing the algorithm lie, ¶¶179(a), 179(c)-179(q), is thus also proper.
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V. Fox Acted with Actual Malice.
Over and over again—as the Introduction and Factual Background demonstrate—Fox witnesses have admitted in their own words they knew the allegations about Dominion were “false” or “crazy” or “reckless” or “nuts” or “bs.” Yet Fox continued to broadcast them. Repeatedly. Over nearly three months.
Actual malice exists when a statement is made with “knowledge that it was false or with reckless disregard of whether it was false or not.” Palin, 940 F.3d at 809 (internal quotation marks omitted). Of course, a plaintiff can prove actual malice “through the defendant’s own actions or statements.” Celle, 209 F.3d at 183 (internal alterations and quotation marks omitted). “The subjective determination of whether [the defendant] in fact entertained serious doubts as to the truth of the statement may be proved by inference, as it would be rare for a defendant to admit such doubts.” Solano, 292 F.3d at 1085 (quoting Bose Corp. v. Consumers Union, 692 F.2d 189, 196 (1st Cir. 1982); see also Herbert v. Lando, 441 U.S. 153, 170 (1979) (noting that “plaintiffs will rarely be successful in proving awareness of falsehood from the mouth of the defendant himself” in the context of allowing plaintiffs to explore circumstantial evidence of knowledge of falsity). This is the rare case where such direct evidence exists.
A plaintiff also can prove actual malice through circumstantial evidence, rather than “from the mouth of the defendant,” because defendants “are prone to assert their good-faith belief in the truth of their publications.” Lando, 441 U.S. at 170. Circumstantial evidence of actual malice comes in many forms. Categories of such evidence include evidence that the defendant: (1) relied on inherently improbable or obviously unreliable sources, see St. Amant v. Thompson, 390 U.S. 727, 732 (1968); Zuckerbrot v. Lande, 167 N.Y.S.3d 313, 335-336 (N.Y. Sup. Ct. 2022); (2) possessed a financial motive to lie about the plaintiff, see Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 668 (1989); Gilmore v. Jones, 2021 WL 68684, at *8 (W.D. Va. Jan. 8, 2021); (2) relied on inherently improbable or obviously unreliable sources, see St. Amant, 390 U.S. at 732; Zuckerbrot v. Lande, 167 N.Y.S.3d 313, 335-336 (N.Y. Sup. Ct. 2022); (3) departed from journalistic standards, see Harte-Hanks, 491 U.S. at 667-68; Eramo v. Rolling Stone, LLC, 209 F. Supp. 3d 862, 872 (W.D. Va. 2016); (4) conceived of the false narrative before publication, see Palin, 940 F.3d at 813; Harris v. City of Seattle, 152 F. App’x 565, 568 (9th Cir. 2005) (unpublished); and (5) refused to retract, and continued to repeat, statements that had been proven false, see Nunes v. Lizza, 12 F.4th 890, 900-901 (8th Cir. 2021); Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1071-1072 (5th Cir. 1987). See generally Restatement (Second) of Torts §580A cmt. (d). No one factor need be conclusive, and actual malice can be demonstrated by the “accumulation” of circumstantial evidence. Celle, 209 F.3d at 183; see Stern v. Cosby, 645 F. Supp. 2d 258, 278 (S.D.N.Y. 2009).
An organizational defendant, just like any other, is subject to liability when it acts with actual malice. Because an organization necessarily acts through individuals, in such cases, “the state of mind required for actual malice” must “be brought home to the persons in the [defendant’s] organization having responsibility for the publication.” Sullivan, 376 U.S. at 287. This requirement, which stems from Sullivan itself, prevents the imposition of liability against a corporate entity solely because some person, somewhere within a vast media organization, possesses knowledge that contradicts the defamatory allegations. Id. (concluding that the “mere presence” of news stories in the Times’ files that contradicted details in the accused advertisement did not establish actual malice, as no individual responsible for the advertisement copy would have had knowledge of the prior news stories). But so long as actual malice is brought home to “at least” one individual who is responsible for the publication of the defamatory statement, the actual malice requirement is satisfied. Page v. Oath Inc., 270 A.3d 833, 850 (Del. 2022); see also Solano, 292 F.3d at 1086 (editorial staff members’ concerns about defamatory statements satisfied actual malice even if staffers were not “the final decisionmakers as to the content”).
As discussed extensively in the Introduction and Factual Background, supra, this case is the rare defamation case with extensive direct evidence of actual malice. The very fact that Fox understood it had to “thread the needle” of appeasing viewers on the one hand, and not spreading election fraud conspiracy theories on the other, demonstrates that Fox knew these claims about Dominion were false. Ex.252. (Three lines redacted). Ex.330. Fox’s many, many other documents and testimony all confirm the same.
Section A below establishes that Fox had the facts necessary to debunk the accused statements about Dominion, from extensive public record sources and direct communications from Dominion pointing to that evidence, and Fox either knowingly or recklessly disregarded those facts.
Section B explains how individuals throughout Fox’s organization knew the statements were false, illustrating at minimum the reckless disregard of their colleagues who nevertheless broadcast those lies. Together, parts A and B sufficiently establish Fox’s actual malice; but the evidence does not stop there.
Section C discusses the executives responsible for the accused programs’ knowledge or reckless disregard of the truth, and Section D walks through the team of hosts and producers, as well as the aforementioned executives, responsible for each program and highlights additional evidence—on top of what has already been set forth in the Factual Background above and Sections A and B below— demonstrating they likewise knew or recklessly disregarded the truth.
Though unnecessary in light of the overwhelming evidence in Sections A and B, plus the additional evidence in Sections C and D, Section E provides circumstantial evidence further underscoring Fox’s actual malice.
Actual malice requires knowledge of falsity or reckless disregard by any one of the people sharing responsibility for a broadcast. Page, 270 A.3d at 850; Solano, 292 F.3d at 1086; Speer v. Ottaway Newspapers, Inc., 828 F.2d 475, 477 (8th Cir. 1987). Here, every person acted with actual malice.
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