US Dominion, Inc. v. Fox News Network, LLC Upon Defendant’s Motion to Dismiss: DENIED

Source: Court Listener
Type: court-document

Source Text

INTRODUCTION
This is a civil action involving a defamation claim. Plaintiffs US Dominion, Inc., Dominion Voting Systems, Inc. and Dominion Voting Systems Corporation (collectively “Dominion”) allege that Defendant Fox News Network, LLC (“Fox”) published false and defamatory statements of fact about Dominion. Through its complaint (the “Complaint”), Dominion contends that: (i) Fox intentionally provided a platform for guests that Fox’s hosts knew would make false and defamatory statements of fact on the air; (ii) Fox, through Fox’s hosts, affirmed, endorsed, repeated, and agreed with those guests’ statements; and (iii) Fox republished those defamatory and false statements of fact on the air, Fox’s websites, Fox’s social media accounts, and Fox’s other digital platforms and subscription services. Dominion seeks punitive and economic damages for defamation per se.

On May 18, 2021, Fox moved to dismiss (the “Motion”) the Complaint for failure to state a claim. Dominion opposed the Motion, filing an answering brief on June 8, 2021.4 Fox filed its reply brief on June 25, 2021.5 The Court held a hearing on the Motion on August 30, 2021.6 At the conclusion of the hearing, the Court took the Motion under advisement. This is the Court’s decision on the Motion. For the reasons set forth below, the Motion is DENIED.

BACKGROUND
Unless otherwise indicated, the following facts are stated as alleged in the Complaint. For purposes of the Motion, the Court must view all well-pled facts alleged in the Complaint as true and in a light most favorable to Dominion. As such, the Court will not necessarily use terms like “alleged facts” or “purported facts” throughout. Unless otherwise indicated, all facts used herein come from the Complaint. This section tracks the facts in the order alleged in the Complaint.

THE PARTIES
Plaintiff US Dominion, Inc. is a Delaware corporation with its principal place of business in Colorado. Plaintiff Dominion Voting Systems, Inc. is a Delaware corporation with its principal place of business in Colorado. Plaintiff Dominion Voting Systems Corporation is an Ontario corporation with its principal place of business in Ontario. Dominion Voting Systems, Inc. and Dominion Voting Systems Corporation are wholly owned subsidiaries of US Dominion, Inc.

Defendant Fox is a Delaware LLC with its principal place of business in New York. 12 Fox operates the Fox news Channel, the Fox Business Channel, Fox News Radio, and Fox News Digital, which it refers to collectively as “Fox News Media.”

RELEVANT NONPARTIES
Maria Bartiromo is a Fox News and Fox Business personality who hosts Mornings with Maria on Fox Business and Sunday Morning Futures with Maria Bartiromo on Fox News. 14 Ms. Bartiromo is Fox’s agent. Fox broadcasts Mornings with Maria and Sunday Morning Futures from New York. Fox also controls Ms. Bartiromo’s social media accounts.

Tucker Carlson is a Fox News personality and hosts Fox’s Tucker Carlson Tonight. Mr. Carlson is Fox’s agent. 19 Fox operates Mr. Carlson’s Instagram account.

Lou Dobbs is a Fox Business personality who hosted Lou Dobbs Tonight. 21 Until at least February 5, 2021, Fox operated Mr. Dobb’s social media accounts.

Sean Hannity is a Fox News personality and hosts Fox’s Hannity. Mr. Hannity is Fox’s agent.

Jeanine Pirro is a Fox News personality who hosts Justice w/ Judge Jeanine. Ms. Pirro is Fox’s agent. Fox operates Ms. Pirro’s social media accounts.

Sidney Powell is an attorney that briefly pursued litigation challenging the 2020 Presidential Election. Those cases were all summarily dismissed by December 9, 2020. 29 Fox repeatedly hosted Ms. Powell after the 2020 Presidential Election.

Rudolph Giuliani, the former mayor of New York City, is a YouTube podcast host, radio show host and attorney to President Donald Trump and the Trump Campaign. Fox repeatedly hosted Mr. Giuliani in the weeks following the 2020 Presidential Election.

Mike Lindell is the founder and CEO of My Pillow, Inc. (“MyPillow”), one of Fox’s biggest sponsors. Fox invited Mr. Lindell on Tucker Carlson Tonight, where he repeated lies about Dominion in response to questions about why he had been banned from Twitter.

DOMINION VOTING SYSTEMS
Dominion’s voting systems are certified under U.S. Election Assistance Commission (“EAC”) standards. The EAC accredits independent testing laboratories that also review and test Dominion’s voting systems. 35 In addition, Dominion designs its voting systems to be auditable. Dominion’s systems include paper ballot backup to verify results. 37

Dominion contracts with state and local governments to provide voting systems services. These contracts typically have multi-year terms and range in value from tens of thousands of dollars to over a hundred million dollars. Dominion’s contracts are historically long-term with high renewal rates. In the 2020 election, Dominion provided voting machine technology in over 28 states including in more than 50 New York counties.

FOX ANTICIPATES SIGNIFICANT MAIL-IN VOTING DURING THE 2020 ELECTION.
Leading up to the 2020 election, Fox reported that election officials expected record mailin voting because of coronavirus pandemic concerns. Fox also reported that mail-in voting was widely expected to favor Democrats, in significant part because prominent Republicans, including former President Trump, consistently encouraged supporters to avoid voting by mail. The Fox News Decision Desk head predicted that Fox would be unable to call some states where it seemed that former President Trump was in the lead because there would still be 20-30 percent of the vote outstanding. The Desk head also recognized – and Fox reiterated before the election – that this would occur because former President Trump criticized mail-in voting while Democrats encouraged voting by mail. Ms. Bartiromo discussed this with former President Trump in an October 11, 2020 interview. Fox still spent considerable airtime before the election searching for and discussing voter fraud that might occur during the election.

FOX CONNECTS DOMINION TO THE FALSE ELECTION FRAUD NARRATIVE.
Shortly after Fox called Arizona in favor of President Biden, many of former President Trump’s supporters spread or supported false claims of election fraud. 48 Fox projected that former President Trump lost the 2020 U.S. Presidential Election on November 7, 2020.49 On November 8, Fox and Ms. Bartiromo invited Ms. Powell to appear on the Sunday Morning Futures show. 50 Ms. Powell declared that there was
a massive and coordinated effort to steal this election from We the People of the United States of America, to delegitimize and destroy votes for Donald Trump, to manufacture votes for Joe Biden.
Ms. Bartiromo asked Ms. Powell: “Sidney, we talked about the Dominion software. I know that there were voting irregularities. Tell me about that.” To which Ms. Powell responded: “That’s putting it mildly….That is where the fraud took place, where they were flipping votes in the computer system or adding votes that did not exist….That’s when they had to stop the vote count and go in and replace votes for Biden and take away Trump votes.”

Ms. Bartiromo previously reported that former President Trump’s lead would not diminish due to fraud but because mail-in and absentee ballots would be counted later than in-person ballots. Fox continued to promote, endorse, and republish falsehoods about Dominion for weeks on television and on digital platforms.

Fox also provided a platform for Ms. Powell and Mr. Giuliani to claim that Dominion created voting machines to rig elections for Hugo Chavez in Venezuela. This connection was based on the verifiably false claim that Dominion is owned by Smartmatic – Dominion’s competitor.

DOMINION EMAILS FACTS TO FOX TO REBUT FOX’S CLAIMS.
Dominion circulated an email titled “SETTING THE RECORD STRAIGHT: FACTS & RUMORS.” The email provided information to disprove the false claims Fox made about the company with links to independent sources. Dominion sent the “SETTING THE RECORD STRAIGHT” emails to Fox’s reporters and producers, including those who oversaw and managed content for Lou Dobbs Tonight, Sunday Morning Futures, Mornings with Maria, Justice w/ Judge Jeanine, Hannity, and other Fox shows. Similarly, EAC Commissioner Ben Hovland notified Fox that the 2020 Election was “the most secure election we’ve ever had.” Professor J. Alex Halderman, Director of the University of Michigan’s Center for Computer Security & Society also told Fox that there “is absolutely no evidence…that Dominion Voting Machines changed any votes in this election.”

Despite these efforts, Fox continued to promote known lies on its broadcasts, websites, social media accounts and subscription service platforms. Mr. Dobbs, Ms. Bartiromo, and Mr. Hannity also continued to give Ms. Powell and Mr. Giuliani a platform to disseminate lies about Dominion by hosting them on their shows. Mr. Dobbs, Ms. Bartiromo and Mr. Hannity likewise endorsed and repeated those lies. 65 For example, Mr. Dobbs declared: “It’s stunning. And they’re private firms and very little is known about their ownership, beyond what you’re saying about Dominion.” In addition, Mr. Dobbs said that “the states as you well know now, they have no ability to audit meaningfully the votes that are cast.”

Ms. Bartiromo continued promoting lies even though she had been specifically notified that independent fact-checkers, government officials and election security experts debunked those lies about Dominion. Moreover, Ms. Bartiromo had actual knowledge that Georgia conducted a hand recount of every paper ballot.

FOX CONTINUES TO AIR ACCUSATIONS OF FRAUD AGAINST DOMINION.
Dominion reached out to Fox’s CEO Suzanne Scott and President and Executive Editor Jay Wallace to address Fox’s false statements about Dominion. Dominion spoke with Mr. Wallace and informed him of the facts rebutting Fox’s false claims. Dominion also sent new and updated versions of the “SETTING THE RECORD STRAIGHT” emails to Fox. 72 Separately, fifty-nine specialists in election security publicly rebutted Fox’s claims about Dominion. 73

Mr. Dobbs again hosted Ms. Powell on his show, where he knowingly gave her a platform to falsely claim that Smartmatic was created in Venezuela to rig elections for Hugo Chavez and that “Smartmatic owns Dominion.” Fox published those claims to its live audience and republished them on its websites and social media accounts.

The Maricopa County Board of Supervisors Chairman reported that there was no evidence of voter fraud and that the hand count audit showed the machines generated an accurate count. The Wall Street Journal also reported that Dominion “was a linchpin in the 2020 election that federal and state officials praise as being free from tampering.” The Wall Street Journal is owned by News Corp. Rupert Murdoch is the Executive Chairman of News Corp. and Lachlan Murdoch is the Co-Chairman. The Murdochs are also in charge of Fox.

Georgia completed its 100% hand audit recount. 81 Georgia’s Secretary of State, Brad Raffensperger reported that “Georgia’s historic first statewide audit reaffirmed that the state’s new secure paper ballot voting system accurately counted and reported results.”

Despite Arizona and Georgia’s audits confirming the Dominion machines’ accuracy, Mr. Dobbs and Mr. Hannity again brought on Mr. Giuliani and Ms. Powell to assert their claims that Dominion rigged the election by changing votes in its machines. Mr. Dobbs previewed and endorsed why Ms. Powell returned to his show: She would “provide more details on how Dominion voting machines and Smartmatic software were used to help Joe Biden.” Ms. Pirro also claimed that Dominion was an organized criminal enterprise started in Venezuela with Cuban money that could and did flip votes with the assistance of Smartmatic software, thus creating ballot dumps that filled in votes for President Biden.

Even after prominent Republicans and the Trump campaign itself publicly disavowed Ms. Powell, Fox continued to host Ms. Powell and Mr. Giuliani on its most-watched shows. 86 Fox’s on-air personnel endorsed Ms. Powell and Mr. Giuliani’s claims that Dominion was created in Venezuela to rig elections for Hugo Chavez and that Dominion rigged the 2020 U.S. election with vote-changing software.

On November 26, 2020, Dominion sent another “SETTING THE RECORD STRAIGHT” email to Fox personnel, stating specific facts debunking claims that Dominion rigged the election in Pennsylvania. 88 For example, Dominion did not operate in many highly contested districts and former President Trump won twelve out of the fourteen counties in which Dominion operated.

On November 29, 2020, Ms. Bartiromo hosted former President Trump for an interview. During this show, Ms. Bartiromo endorsed the claim that Dominion rigged the election, calling it disgusting and corrupt. That same day, Dominion sent out fact sheets including links to independent websites disproving claims that Dominion rigged the election in Arizona and Michigan. 92

On November 30, 2020, Fox hosted Ms. Powell on Hannity. On Hannity, Ms. Powell claimed that Dominion machines
ran an algorithm that shaved off votes from Trump and awarded them to Biden. And they used the machines to trash large batches of votes that should have been awarded to President Trump. And they used the machines to inject and add massive quantities of votes for Mr. Biden.
Mr. Hannity did not correct Ms. Powell or notify his viewers that he and his show’s producers had seen evidence disproving those claims.

On the same day, Mr. Dobbs claimed:
We have, across almost every state, whether it’s Dominion, whatever the company – voting machine company is, no one knows their ownership, has no idea what’s going on in those servers, has no understanding of the software, because it’s “proprietary.” It is the most ludicrous, irresponsible, and rancid system imaginable in the world’s only superpower.

On December 1, 2020 then-U.S. Attorney General Bill Barr stated that the DHS and DOJ found nothing substantiating the claim that voting machines were programmed to skew election results. Nonetheless, Fox continued to host Ms. Powell and Mr. Giuliani and Fox personnel endorsed their fraud claims. In the two-week period after Fox news declared President Biden the president-elect, the network questioned results of the election or pushed conspiracy theories at least 774 times. Fox reported that by mid-December, seventy percent of Republicans thought the election was rigged because of voter fraud.

On December 10, 2020, Fox tweeted a promotion for Lou Dobbs Tonight stating: “The 2020 Election is a cyber Pearl Harbor: The leftwing establishment have aligned their forces to overthrow the United States government maga americafirst dobbs.” 101 Fox also embedded a document in the tweet claiming to prove that Dominion concealed a controller within the machines that manipulated the machines through the internet, and that Dominion colluded with the Democratic Party and China to commit voting fraud. Hours after this tweet, Mr. Dobbs asked Ms. Powell how Dominion rigged the election and how Dominion engaged in a “coordinated effort to actually bring down this President.” Mr. Dobbs claimed to have tremendous evidence to support Ms. Powell’s claim and invited Ms. Powell to put forward evidence as well.

On December 16, 2020, Ms. Bartiromo announced that an “intel source” told her that former President Trump won the election. 105

Events Citing This Source

Event	Date	Category
Fox News Defamation Settlement	Apr 18, 2023	Foreign Interference & Disinformation

People Mentioned

Person	Role

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