Take yourself back. It’s Election night in America 2020 (night five or maybe seven?). No president has been elected. The networks scream “breaking news” every five minutes. You’re Googling "Bucks County, PA." The votes keep coming in—and the votes keep getting recounted. Election purgatory has set in. On one cable news network in particular, though, the coverage over the following weeks focuses on something a little different. Fox reports on voting systems company Dominion—and keeps reporting on it. Starting on November 7, 2020, Fox and its reporters made hundreds of allegations about Dominion and alleged fraud with its voting machines during the 2020 election.

Dominion eventually sued Fox for defamation, claiming $1.6 billion in damages. With a star-studded list of witnesses being deposed and a trial slated for April 2023, this case could have lasting implications on First Amendment and defamation jurisprudence, including how we can fight disinformation with defamation law (which the Fox & Friends will definitely have something to say about). Here’s what you should know: 

1. The lawsuit. The voting systems company Dominion sued Fox in March 2021 in the Superior Court of Delaware for defamation. Dominion brought the case based on statements Fox News made about alleged fraud with the Dominion voting machines in the 2020 Presidential Election.  

2. Dominion’s complaint. Dominion alleges that “Fox endorsed, repeated, and broadcast a series of verifiably false yet devastating lies about Dominion,” including claims that Dominion rigged the 2020 Presidential Election, its algorithms manipulated vote counts, and Dominion paid kickbacks to government officials who used its machines.

3. Fox made more than 770 allegations about Dominion. According to Dominion’s complaint, Fox “questioned the results of the election or pushed conspiracy theories about it at least 774 times.”

4. Actual malice. In order to prove that Fox is liable for defamation, Dominion must show that Fox's anchors, reporters, journalists and executives acted either with “actual malice”—that is knowledge that what they were broadcasting wasn't true—or acted with reckless disregard for its truth. This actual malice standard was establish in New York Times v. Sullivan (but its ongoing validity has been recently questioned by two Supreme Court justices.)

5. "I did not believe it." In Sean Hannity’s deposition, when asked whether he thought there was voter fraud in the 2020 election, he boldly stated, “I did not believe it for one second,” which doesn’t bode well for Fox’s defense.

6. The First Amendment. Fox moved to dismiss the case in May 2021. Fox argued that its speech was protected under the First Amendment, based on three theories: (1) the “neutral reportage defense,” (2) the “fair report” privilege, and (3) opinion. Fox argued that “truthfully reporting newsworthy allegations made by a President and his legal team on matters of public concern is not actionable” and that it has “complete protection to report and comment about allegations made in government proceedings.”

7. Defenses for the press. As Fox argued, the press may have immunity from liability in defamation cases—and it depends on each state’s law. The “neutral reportage defense” is available “where the journalist believes, reasonably and in good faith, that his report accurately conveys the charges made.” [1]. The “fair report” privilege applies where a publication makes a “fair and true report of any judicial proceeding.” [2]

8. The Judge denies Fox’s motion to dismiss. In December 2021, the court rejected Fox’s motion to dismiss, holding that New York law governs the substantive defamation issues in the case. In its order, the Judge wrote that “the Court questions whether Fox can raise neutral reportage doctrine or analogous newsworthiness privilege as an absolute defense to liability for defamation under New York law,” given that the New York Court of Appeals rejected the privilege in 1982. Even if the “neutral reportage” defense were available, the Court explained that Fox would need to show that it “accurately and dispassionately reported the newsworthy event”—and that Fox's reporting was neither of those things based on the well-pleaded allegations. [3] The Court also held that based on the complaint, “Fox's reporting (i) was not fair or true and (ii) did not concern an official proceeding.” Judge Davis also found that Dominion adequately pled actual malice, writing that “the Complaint alleges that several of Fox's personnel openly disclaimed the fraud claims as false.”

9. A roster of Fox witnesses. Dominion has called some of Fox’s best known anchors and reporters to sit for depositions, including Judge Jeanine Pirro, Tucker Carlson, Lou Dobbs, Hannity, Shepard Smith, Steve Doocy, Bret Baier, Laura Ingraham and Fox News CEO Suzanne Scott, along with former Attorney General William Barr. Paul Ryan, former speaker of the house, who joined the Fox board in 2019, was also called to be deposed.

10. Murdoch. Fox Chairman Rupert Murdoch’s deposition has been delayed a few times, but was scheduled to finally take place in late January 2023. 

The trial is scheduled for April 2023—stay tuned for more breaking news.

The case is US Dominion, Inc., et al. v. Fox News Network, LLC, No. N21C-03-257EMD.

[1] Edwards v. Nat'l Audubon Soc., Inc., 556 F.2d 113, 120 (2d Cir. 1977).

[2] N.Y. Civ. Rights Law § 74.

[3] US Dominion, Inc. v. Fox News Network, LLC, No. CV N21C-03-257 EMD, 2021 WL 5984265, at *24 (Del. Super. Ct. Dec. 16, 2021), cert. denied, No. CV N21C-03-257 EMD, 2022 WL 100820 (Del. Super. Ct. Jan. 10, 2022), and appeal refused, 270 A.3d 273 (Del. 2022).