US Dominion, Inc. v. Fox News Network, LLC ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
US DOMINION, INC., DOMINION )
VOTING SYSTEMS, INC., and )
DOMINION VOTING SYSTEMS )
CORPORATION, ) C.A. No.: N21C-03-257 EMD
)
Plaintiffs, )
)
v. )
)
FOX NEWS NETWORK, LLC, )
)
Defendant. )
)
)
US DOMINION, INC., DOMINION )
VOTING SYSTEMS, INC., and )
DOMINION VOTING SYSTEMS )
CORPORATION, )
) C.A. No. N21C-11-082 EMD
Plaintiffs, )
)
v. )
)
FOX CORPORATION, )
)
Defendant. )
Submitted: March 22, 20231
Decided: March 31, 2023
Upon Defendant Fox News Network, LLC’s Rule 56 Motion for Summary Judgment
DENIED
Upon Defendant Fox Corporation’s Rule 56 Motion for Summary Judgment
DENIED
Upon Dominion’s Motion for Summary Judgment on Liability of Fox News Network, LLC and
Fox Corporation
GRANTED in part and DENIED in part
1
D.I. No. 1220.
Brian Farnan, Esquire, Michael J. Farnan, Esquire, Farnan LLP, Wilmington, Delaware; Rodney
Smolla, Esquire (argued), South Royalton, Vermont; Thomas A. Clare, Esquire, Megan L.
Meier, Esquire, Dustin A. Pusch, Esquire, Daniel P. Watkins, Esquire, Clare Locke LLP,
Alexandria, Virginia; Justin A. Nelson, Esquire (argued), Jonathan J. Ross, Esquire, Elizabeth
Hadaway, Esquire, Susman Godfrey LLP, Houston, Texas; Stephen Shackelford, Jr., Esquire
(argued), Elisha Barron, Esquire, Mark-Hatch-Miller, Esquire, Zach Savage, Esquire, Susman
Godfrey LLP, New York, New York; Davida Brook, Esquire, Jordan Rux, Esquire, Susman
Godfrey LLP, Los Angeles, California; Stephen E. Morrissey, Esquire, Edgar Sargent, Esquire,
Katherine Peaslee, Esquire, Susman Godfrey LLP, Seattle, Washington; Attorneys for Plaintiffs
US Dominion, Inc., Dominion Voting Systems, Inc. and Dominion Voting Systems Corporation.
Blake Rohrbacher, Esquire, Katharine L. Mowery, Esquire, Angela Lam, Esquire, Richards,
Layton & Finger, P.A., Wilmington, Delaware; Paul Clement, Esquire, Erin E. Murphy, Esquire
(argued), Clement & Murphy, PLLC, Alexandria, Virginia; Dan K. Webb, Esquire, Matthew R.
Carter, Esquire, Winston & Strawn LLP, Chicago, Illinois; Scott A. Keller, Esquire, Lehotsky
Keller LLP, Washington, D.C; Eric M. George, Esquire, Katherine A. Petti, Esquire, Ellis
George Cipollone O’Brien Annaguey LLP, Los Angeles, California; Attorneys for Defendant
Fox News Network, LLC and Fox Corporation.
John L. Reed, Esquire, Ronald N. Brown, III, Esquire, DLA Piper LLP (US), Wilmington, DE;
Counsel for Defendant Fox Corporation.
DAVIS, J.
I. 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 (“FNN”) and Fox Corporation
(“FC”)2 published false and defamatory statements of fact about Dominion. Dominion
commenced its action against FNN on March 26, 2021. Dominion then commenced its action
against FC and Fox Broadcasting Company, LLC on November 8, 2021. On June 21, 2022, the
Court granted a motion to dismiss Fox Broadcasting Company, LLC. On December 22, 2022,
the Court consolidated the two actions, with FNN and FC as the remaining defendants.
2
At times, the Court may collectively refer to FNN and FC as “Fox.”
2
Through its complaints (the “Complaints”), Dominion contends that: (i) FNN and FC
intentionally provided a platform for guests that FNN’s hosts knew would make false and
defamatory statements of fact on the air; (ii) FNN and FC, through FNN’s hosts, affirmed,
endorsed, repeated, and agreed with those guests’ statements; and (iii) FNN, with the
participation of FC, republished those defamatory and false statements of fact on the air, FNN’s
websites, FNN’s social media accounts, and FNN’s other digital platforms and subscription
services. Dominion seeks punitive and economic damages for defamation per se.
FNN and FC each filed a Motion for Summary Judgment on January 17, 2023.3 In the
FNN Motion, FNN argues that it is entitled to summary judgment because (i) the contested
statements are not actionable under the First Amendment and the applicable New York doctrines,
(ii) Dominion failed to show that the statements were made or published with actual malice, and
(iii) Dominion did not suffer damages. In the FC Motion, FC argues that it is entitled to
summary judgment because FC cannot be held vicariously liable for the actions of its subsidiary,
and that FC executives were not directly involved in creating or publishing the contested
statements. Dominion contests all arguments made in the Fox Motions.
On January 17, 2023, Dominion filed its Motion for Summary Judgment on Liability of
Fox News Network, LLC and Fox Corporation (the “Dominion Motion”). Dominion argues that
Fox published false and defamatory statements about Dominion’s role in the 2020 United States
Presidential Election (the “2020 Election”). Specifically, Dominion states FNN (and FC) “gave
life to a manufactured storyline” that Dominion rigged the Election.4 Dominion alleges that
FNN “endorsed, repeated, and broadcast a series of verifiably false yet devastating lies about
3
Respectively, Defendant Fox News Network, LLC’s Rule 56 Motion for Summary Judgment (the “FNN Motion”)
and Defendant Fox Corporation’s Rule 56 Motion for Summary Judgment (the “FC Motion”).
4
Compl. ¶ 1, Mar. 26, 2021 (D.I. No. 1).
3
Dominion.”5 Dominion claims that Fox made various defamatory statements about Dominion in
twenty broadcasts, and categorizes the statements into four subsections: (1) “the fraud lie,” (2)
“the algorithm lie,” (3) “the Venezuela lie,” and (4) “the kickback lie.”6 Dominion argues that
summary judgment on liability should be granted in its favor because any reasonable juror would
find that Fox made (1) false statements; (2) of and concerning Dominion; (3) that were
published; (4) that were defamatory per se; and (5) did so with actual malice. FNN and FC
oppose the Dominion Motion.
The Court held a hearing (the “Hearing”) on the FNN Motion, the FC Motion and the
Dominion Motion on March 21, 2023 and March 22, 2023.7 At the conclusion of the Hearing,
the Court took the various motions under advisement. This is the Court’s decision on the FNN
Motion, the FC Motion and the Dominion Motion. For the reasons set forth below, the FNN
Motion and the FC Motion are DENIED, and the Dominion Motion is GRANTED, in part, and
DENIED, in part.
II. BACKGROUND
A. THE PARTIES
Plaintiff US Dominion Inc. is a for-profit Delaware corporation. US Dominion Inc.
maintains its principal place of business in Denver, Colorado.8
Plaintiff Dominion Voting Systems, Inc. is a for-profit Delaware Corporation with its
principal place of business in Denver, Colorado.9 Dominion Voting Systems, Inc. also operates
5
Id. ¶ 2.
6
Dominion MSJ, Appx. D, Jan. 17, 2023 (D.I. No. 951).
7
D.I. No. 1220.
8
Compl. ¶ 8.
9
Id. ¶ 9.
4
an office in New York.10 Dominion Voting Systems, Inc. is a wholly owned subsidiary of US
Dominion, Inc.11
Plaintiff Dominion Voting Systems Corporation is a for-profit Ontario, Canada
corporation with its principal place of business in Toronto, Ontario.12 Dominion Voting Systems
Corporation is a wholly owned subsidiary of US Dominion, Inc.13
Defendant FNN operates Fox News Channel, Fox Business Channel, Fox News Radio,
and Fox News Digital which includes fox.com, foxnews.com, foxbusiness.com, Fox’s social
media accounts, and Fox’s digital subscription services.14 FNN is a limited liability company
incorporated in Delaware with its principal place of business in New York.15
Defendant FC is a Delaware corporation with its headquarters in New York.16 FC is a
publicly traded news, sports, and entertainment company that owns numerous subsidiary
businesses, including FOX News Media (the trade name for Fox News Network, which includes
Fox News Channel, Fox Business Network, Fox Digital, Fox News Audio, and Fox Weather), as
well as other brands.17
B. RELEVANT NON-PARTIES
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.18
Fox broadcasts Mornings with Maria and Sunday Morning Futures from New York.19 FNN also
10
Id.
11
Id.
12
Id. ¶ 10.
13
Id.
14
Id. ¶ 11; Def. FNN’s Answer to Pls.’ Compl. and Countercl. ¶ 11 (“FNN Answer to Compl.”), Jan. 24, 2022 (D.I.
181).
15
Compl. ¶ 11; FNN Answer to Compl. ¶ 11.
16
Compl. ¶ 11; FNN Answer to Compl. ¶ 11.
17
FC MSJ, Ex. G14, FC 2022 Form 10-K at 2.
18
FNN Answer to Compl. ¶ 12.
19
Id.
5
controls Ms. Bartiromo’s social media accounts.20 Ms. Bartiromo is FNN’s agent.21 At the time
of the broadcasts at issue, Abby Grossberg was the Senior Booking Producer of Sunday Morning
Futures.22
Tucker Carlson is a Fox News personality and hosts Tucker Carlson Tonight.23 Mr.
Carlson is FNN’s agent.24 FNN operates Mr. Carlson’s Instagram account.25 At the time of the
broadcasts at issue, Justin Wells was the Senior Executive Producer; Alexander McCaskill was
the Senior Producer; Kelly Earney was the Senior Booking Producer; Alex Pfeiffer was the
Producer; and Eldad Yaron was the Booking Producer.26
Lou Dobbs is a Fox Business personality who hosted Lou Dobbs Tonight until February
2021, when FNN cancelled the show.27 Until at least February 5, 2021, FNN operated Mr.
Dobb’s social media accounts.28 At the time of the broadcasts at issue, Jeff Field was the Senior
Producer; Anne McCarton was the Senior Booking Producer; Michael Biondi was an Associate
Producer; John Fawcett was an Associate Producer; and Alexander Hooper was the Coordinating
Producer.29
Sean Hannity is a Fox News personality and hosts Hannity.30 Mr. Hannity is FNN’s
agent.31 At the time of the broadcasts at issue, Robert Samuel was the Senior Producer.32
20
Compl. ¶ 12; id.
21
Compl. ¶ 12; FNN Answer to Compl. ¶ 12.
22
Dominion MSJ, Appx. C.
23
FNN Answer to Compl ¶ 13.
24
Compl. ¶ 13; id.
25
Compl. ¶ 13; FNN Answer to Compl. ¶ 13.
26
Dominion MSJ, Appx. C.
27
FNN Answer to Compl. ¶ 14.
28
Compl. ¶ 14; id.
29
Dominion MSJ, Appx. C.
30
FNN Answer to Compl. ¶ 15.
31
Compl. ¶ 15; id.
32
Dominion MSJ, Appx. C.
6
Jeanine Pirro is a Fox News personality who hosts Justice w/ Judge Jeanine.33 Ms. Pirro
is FNN’s agent.34 FNN operates Ms. Pirro’s social media accounts.35 At the time of the
broadcasts at issue, Jennifer Voit was the Senior Producer.36
Sidney Powell is an attorney that briefly pursued litigation challenging the 2020
Election.37 Those cases were all summarily dismissed by December 9, 2020.38 Fox repeatedly
hosted Ms. Powell after the election. Ms. Powell was purportedly part of former President
Trump’s legal team, but on November 22, former President Trump stated she was “practicing
law on her own.”39
Rudolph Giuliani, the former mayor of New York City, is a YouTube podcast host, radio
show host and attorney to former President Donald Trump and the Trump Campaign.40 Fox
repeatedly hosted Mr. Giuliani in the weeks following the election.
Mike Lindell is the founder and CEO of MyPillow, Inc, one of Fox’s biggest sponsors.41
C. FNN EXECUTIVES
Thomas Lowell is the Executive Vice President and Managing Editor of FNN and
represents the corporation as its Superior Court Civil Rule 30(b)(6) representative.42
33
FNN Answer to Compl. ¶ 16.
34
Compl. ¶ 16; id.
35
Compl. ¶ 16; FNN Answer to Compl. ¶ 16.
36
Dominion MSJ, Appx. C.
37
Compl. ¶ 17.
38
Id.; see also Alison Durkee, Sidney Powell’s Voter Fraud Claims Fail in All Battleground States as Arizona and
Wisconsin Judges Reject Cases, FORBES (Dec. 9, 2020 7:19 PM),
https://www.forbes.com/sites/alisondurkee/2020/12/09/sidney-powells-voter-fraud-claims-fail-for-third-time-as-
arizona-judge-rejects-case/?sh=16050d691993.
39
Kyle Cheney, Trump Campaign Cuts Sidney Powell from President’s Legal Team, POLITICO (Nov. 22, 2020, 8:50
PM), https://www.politico.com/news/2020/11/22/trump-campaign-sidney-powell-legal-439357.
40
Compl. ¶ 18.
41
Dominion MSJ, Exs. 521-22.
42
Dominion MSJ, Appx. C.
7
Suzanne Scott is the Chief Executive Officer of FNN.43 As the CEO, Ms. Scott is
responsible for the content of the shows and has the authority to direct shows to not host certain
guests or broadcast certain content.44
Jay Wallace is the President and Executive Editor of FNN and Fox Business.45 Mr.
Wallace has “ultimate editorial control” over Fox News Channel and Fox Business Network.46
Ron Mitchell is the Vice President of Primetime Programming and Analytics of Fox
News.47 Mitchell has editorial oversight of Tucker Carlson Tonight and Hannity.48 Mr. Mitchell
has input in what topics and guests the shows cover.49
Alan Komissaroff was the Senior Vice President of News and Politics of FNN.50
Irena Briganti is the Senior Vice President of Corporate Communications of FNN.51
David Clark is the Senior Vice President of Weekend News and Programming of Fox
News.52 Mr. Clark “oversaw the bulk of programming on Saturdays and Sundays,” which
included Sunday Morning Futures and Justice with Judge Jeanine.53 Mr. Clark testified that his
role had “an editorial component” because he “work[s] with the show team on the stories the
show will touch and broadcast.”54 This included consulting with the show teams about who
would appear on shows, including Powell and Giuliani.55
43
Dominion MSJ, Appx. C.
44
Dominion MSJ, Ex. 106, Clark 23:7-24.
45
Dominion MSJ, Appx. C.
46
Dominion MSJ, Ex. 147, Wallace 17:22-18:6, 19:13-22:12, 36:2-13, 171:9-13.
47
Dominion MSJ, Appx. C.
48
Dominion MSJ, Ex. 129, Mitchell 9:24-10:2, 11:8-12:3, 19:3-10.
49
Id. at 22:5-25:21, 28:24-29:6.
50
Dominion MSJ, Appx. C.
51
Id.
52
Id.
53
Dominion MSJ, Ex. 106, Clark 10:13-13:4.
54
Id. at 13:1-4.
55
Id. at 22:7-17, 25:19-27:6.
8
Lauren Petterson is the President of Fox Business News.56 Ms. Petterson has decision-
making authority.57
Gary Schreier is Ms. Petterson’s second-in-command and was the executive between Ms.
Petterson and the shows.58
Meade Cooper is the Executive Vice President for Primetime Programming of Fox
News.59 Ms. Cooper is responsible for the editorial oversight of the primetime shows, which
included Hannity, Justice with Judge Jeanine, and Tucker Carlson Tonight.60 Ms. Cooper
oversees “guests that were booked, topics that were covered, things that were said.”61
Gary Schreier is the Senior Vice President of Programming of Fox Business.62
Bill Sammon is the Senior Vice President and Managing Editor of the Washington
Bureau of Fox News.63
Porter Berry is the Vice President and Editor-in-Chief of Fox News Digital.64
D. FC EXECUTIVES
Rupert Murdoch is the Chairman of FC.65
Lachlan Murdoch is the Chief Executive Officer of FC.66
56
Dominion MSJ, Appx. C.
57
See, e.g., Dominion MSJ, Ex. 133, Petterson 273:4-274:18.
58
Id. at 84:15-86:10.
59
Dominion MSJ, Appx. C.
60
See Dominion MSJ, Ex. 108, Cooper 31:10-33:1.
61
Id. at 42:24-43:4. See also Dominion MSJ, Ex. 375 (Ms. Cooper’s email to Ms. Scott stating: “Clearly, I reject
the notion that the hosts don’t have bosses exercising judgment.”); Dominion MSJ, Ex. 376 (show request for
permission to book Giuliani in November 2020); Dominion MSJ, Ex. 487 (Ms. Fazio emailing Ms. Cooper and Mr.
Mitchell to flag that Mr. Hannity wanted Ms. Powell on his November 30 broadcast).
62
Dominion MSJ, Appx. C.
63
Id.
64
Id.
65
Id.
66
Id.
9
Raj Shah is the Senior Vice President of FC and the head of FC’s Brand Protection
Unit.67
Viet Dinh is the Chief Legal and Policy Officer for FC.68
E. ELECTRONIC VOTING CONCERNS
In the past, vulnerabilities of electronic voting machines have been highlighted by
various people,69 including computer science experts70 as well as hackers.71 Notably, Congress
held a hearing in January 2020 where lawmakers posed questions and expressed concerns to the
nation’s three major voting machine manufacturers, including Dominion.72 The media has also
covered these concerns.73 Though not known to Fox at the time of the broadcasts, discovery has
67
Id.; Dominion MSJ, Ex.605, Shah 63:17-65:9.
68
Dominion MSJ, Appx. C.
69
See Fox MSJ, Ex. D1, Ben Wofford, How to Hack an Election in 7 Minutes, POLITICO (Aug. 5, 2016) (discussing
vulnerabilities); Fox MSJ, Ex. D2, How to Hack an Election, THE N.Y. TIMES (Jan. 31, 2004) (discussing need for
“more safeguards”); Fox MSJ, Ex. D3, When Votes Disappear, THE N.Y. TIMES (Nov. 24, 2006) (claiming the
touch-screens on electronic voting machines in Florida’s 13 th Congressional District supposedly failed); Fox MSJ,
Ex. E1, Piper 157:20-158:14; 161:2-21 (stating Ohio and California conducted reviews of electronic voting system
vulnerabilities in 2007); Fox MSJ, Ex. D6, CNN, Democracy at Risk (Nov. 3, 2006) (Lou Dobbs Tonight CNN
transcript discussing vulnerabilities in electronic voting machines); Fox MSJ, Ex. D7, Eric Geller, Georgia Likely to
Plow Ahead With Buying Insecure Voting Machines, POLITICO (Mar. 28, 2019, 5:06 AM) (discussing
vulnerabilities of barcode voting machines that do not have paper ballot backup).
70
See Fox MSJ, Ex. F1 ¶ 18 (Nov. 28, 2022) (Wallach Report stating that in 2007, California reviewed Diebold,
Hart InterCivic, and Sequoia voting machines and found that all three systems had viral vulnerabilities); Fox MSJ,
Ex. H1 (email with embedded computer scientist article claiming that Dominion software does not allow ImageCast
Evolution to print on your ballot, but fraudulent software could exploit this and cast additional votes on ballot)
(embedding Andrew Appel, Design Flaw in Dominion ImageCast Evolution Voting Machine, FREEDOM TO TINKER
(Oct. 16, 2018)).
71
See Fox MSJ, Ex. D26, Taylor Telford, Hackers Were Told to Break Into U.S. Voting Machines. They Didn’t
Have Much Trouble, WASHINGTON POST (Aug. 19, 2019) (discussing hacker conference).
72
See Fox MSJ, Ex. D10, Christina A. Cassidy, Voting Machine Vendors Get Scrutiny at Congressional Hearing,
WASHINGTON POST (Jan. 9, 2020).
73
See, e.g., Fox MSJ, Ex. D11, Pat Beall, Will Your Ballot Be Safe? Computer Experts Sound Warnings on
America’s Voting Machines (Nov. 2, 2020, 6:07 PM); Fox MSJ, Ex. D12, Kate Brumback, Another Showdown Set
This Week Over Georgia Voting Machines (Sept. 9, 2020, 7:13 AM); Fox MSJ, Ex. D13, Danny Hakim et al.,
Anatomy of an Election ‘Meltdown’ in Georgia, N.Y. TIMES (July 25, 2020 ); Fox MSJ, Ex. D13, Alan Judd, In
High-Stakes Election, Georgia’s Voting System Vulnerable to Cyberattack, ATLANTA J. CONSTITUTION (Oct. 23,
2020).
10
shown that Dominion machines in the past had technical issues unlike and unrelated to those
alleged in this civil action.74
F. DOMINION
Dominion was founded in 2002 by Dominion CEO John Poulos as a voting technology
company with the objective of providing “accurate, transparent, and accessible elections.”75 The
machines were designed to generate an auditable paper record backup, allowing Dominion
customers to “test, verify, and audit” election results.76 Dominion’s voting systems are certified
under U.S. Election Assistance Commission (“EAC”) standards, reviewed, and tested by
independent testing laboratories accredited by the EAC, and are designed to be auditable.77
Dominion machines served twenty-eight states and Puerto Rico during the election.78 After the
election, Dominion soon began to be blamed for the “stolen election.”
G. THE 2020 ELECTION
On November 7, 2020, President Biden was declared the President-elect. Due to COVID
concerns, it was known that the 2020 election (the “Election”) would involve numerous mail-in
ballots – a fact that Fox employees were aware of prior to the Election.79
74
See Fox MSJ, Ex. H2, Coomer Email (Oct. 30, 2020) (“[O]ur shit is just riddled with bugs[.]”); Fox MSJ, Ex.
H24, Daulby Email to Dominion (Nov. 8, 2020) (“We are having issues observing the GA-7 race. There have been
irregularities with machine counts and your techs are coming to reprogram the machines.”).
75
Compl. ¶ 20.
76
Dominion MSJ, Ex. 183, Poulos Aff. ¶ 3.
77
Id. ¶ 7; Dominion MSJ, Ex. 189 at FNN008_00026258.
78
Dominion MSJ, Ex. 183, Poulos Aff. ¶ 7, Ex. 189 at FNN008_00026258.
79
See Dominion MSJ, Ex. 146, Stirewalt 20:17-25 (testifying that election day votes would skew Republican, while
mail-in and absentee votes would skew Democratic); Dominion MSJ, Ex. 106, Clark 142:11-21 (agreeing in
deposition that the results would lead to a shift in the final vote tally); Dominion MSJ, Ex. 438 (Fox News Decision
Team stating that key states will look red before shifting blue in the following days and noting “because some key
states will not count many mail ballots until later this week, the presidential race call could come AFTER election
night. . . . but it does NOT mean that there are problems with the integrity of the vote count.”).
11
H. FORMER PRESIDENT TRUMP AND TEAM CONTEND ELECTION FRAUD
It was “well-known and understood by everybody in the business” that former President
Trump would “claim that the only way that he could lose the election was by fraud, or that the
only way that he would not prevail would be if it was stolen.”80 “He had laid that predicate
down throughout the spring and into the summer.”81
After President Biden was declared the winner, former President Trump claimed that the
election was “far from over,” and announced plans to pursue litigation.82 A team lead by Mr.
Giuliani and Ms. Powell then filed numerous lawsuits in multiple states alleging voting
irregularities, several of which implicated Dominion.83 This was “in part because several media
outlets reported problems in jurisdictions that used Dominion machines in the immediate
aftermath of the election . . . [such as] Antrim County, Michigan. . . . and Georgia.”84
On November 7, 2020, the Trump Campaign and the Republican National Committee
filed suit in Arizona, alleging that vote tabulation machines improperly rejected ballots and
election officials failed to cure them.85 On November 11, 2020, the Trump Campaign filed suit
in Michigan, alleging, among other things, that Dominion tabulation machines were defective.86
80
Dominion MSJ, Ex. 146, Stirewalt 16:2-15.
81
Id. at 16:9-11.
82
Fox MSJ, Ex. A2 at 2.
83
FNN Ans. Br. at 18. There is no dispute that Mr. Giuliani represented former President Trump, however there is a
dispute as to whether Ms. Powell represented him. See Catherine Lucey, Sidney Powell Not Part of Trump’s Legal
Team, Says Rudy Giuliani, WALL ST. J. (Nov. 23, 2020 10:50 AM), https://www.wsj.com/articles/giuliani-says-
sidney-powell-not-part-of-trumps-legal-team-11606088107; compare Donald J. Trump (@realDonaldTrump),
TWITTER (Nov. 14, 2020 10:11 PM), https://twitter.com/realDonaldTrump/status/1327811527123103746 (“I look
forward to Mayor Giuliani spearheading the legal effort to defend OUR RIGHT to FREE and FAIR ELECTIONS!
Rudy Giuliani, Joseph diGenova, Victoria Toensing, Sidney Powell, and Jenna Ellis, a truly great team, added to our
other wonderful lawyers and representatives!”), with Kyle Cheney, Trump Campaign Cuts Sidney Powell from
President’s Legal Team, POLITICO (Nov. 22, 2020, 8:50 PM), https://www.politico.com/news/2020/11/22/trump-
campaign-sidney-powell-legal-439357.
84
FNN Ans. Br. at 18-19.
85
Id. at 19.
86
Id. at 19-20.
12
On November 13, 2020, Lin Wood filed suit in Georgia seeking to overturn the Election.87 On
November 25, 2020, Ms. Powell and Mr. Wood filed suits in Georgia and Michigan, alleging
that Dominion machines manipulated votes.88 On December 1, 2020, Ms. Powell filed suit in
Wisconsin, raising similar allegations, and the next day she did the same in Arizona.89
Former President Trump continued to perpetuate the conspiracy that the Election was
stolen.90 On January 7, 2021, he stated that after his campaign’s “pursu[it of] every legal avenue
to contest the election results” it was time to make the presidential transition, but did not
squarely declare that President Biden was legitimately elected.91
I. FNN’S ELECTION COVERAGE AND RISING BRAND CONCERNS
FNN was the first news network to call Arizona for President Biden.92 Following the
call, FNN received “major heat” from viewers.93
Backlash came from others, too. Former President Trump’s political advisor Jason Miller
tweeted, “@FoxNews is a complete outlier in calling Arizona, and other media outlets should not
follow suit. There are still 1M+ Election Day votes out there waiting to be counted – we pushed
our people to vote on Election Day, but now Fox News is trying to invalidate their votes!94 Liz
87
Id. at 19. Filed with this suit was a redacted affidavit from a person claiming to be Hugo Chavez’s former
security guard, alleging that Dominion’s software is a descendent of Smartmatic, which the affiant claimed was used
to rig Venezuelan elections. See Fox MSJ, Ex. C5, Aff.
88
FNN Ans. Br. at 20-21. The Georgia complaint cites the affidavit of an alleged whistleblower who claimed
“Smartmatic and Dominion were founded by foreign oligarchs and dictators” to ensure “Venezuelan dictator Hugo
Chavez never lost another election.” Fox MSJ, Ex. C8, Compl. ¶ 5. It also cites the sworn declaration of an alleged
military intelligence expert, who claims foreign agents have exploited Dominion’s vulnerabilities to manipulate the
Election. Id. ¶ 111. The Michigan complaint contained similar allegations. See Fox MSJ, Ex. C9, Compl.
89
FNN Ans. Br. at 21.
90
FNN Ans. Br. at 22.
91
Donald J. Trump (@realDonaldTrump), TWITTER (Jan. 7, 2021, 7:10 PM), https://t.co/csX07ZVWGe.
92
Dominion MSJ at 18.
93
Dominion MSJ, Ex. 195 (email to Mr. Wallace and Mr. Sammon, stating “I/we are taking major heat over the AZ
call.”); see also Dominion MSJ, Ex. 193 (Mr. Shah email to Lachlan Murdoch, Mr. Dinh, and Ms. Scott stating
“[l]ots of conservative criticism of the AZ call”); Dominion MSJ, Ex. 194 (email from Mr. Shah showing Twitter
Analytics spike in conservative criticism of Fox); Dominion MSJ, Ex. 126, Komissaroff 121:25-123:16 (agreeing
there was viewer backlash after the AZ call).
94
Jason Miller (@JasonMillerinDC), TWITTER (Nov. 3, 2020, 11:47 PM),
https://twitter.com/JasonMillerinDC/status/1323849305917186050.
13
Harrington, the Republican National Committee spokesperson, tweeting, “Call GA, NC, and TX,
you HACKS! Retract AZ!”95 On November 12, 2020, after FNN aired a segment concluding
that “nothing filed, any challenge so far, appears likely to overturn the results in any state,”
former President Trump began criticizing Fox and retweeting tweets encouraging Fox viewers to
switch to other networks.96
As ratings for Newsmax (a FNN competitor) increased, Ms. Scott sent an email to Kyle
Godwin, the Vice President of Programming of FNN, directing him to “keep an eye.”97 Mr.
Wallace called the Newsmax surge “a bit troubling.”98 Mr. Wallace said it was an “alternate
universe.”99 Additionally, Mr. Wallace stated that Fox was on “war footing.”100
And on November 7, 2020, when Fox ultimately declared that President Biden had won
the Election, its viewership went down.101 Lachlan Murdoch testified that the drop was
concerning.102 On November 8, Rupert Murdoch emailed Ms. Scott, saying that Fox was
“[g]etting creamed by CNN!”103 In response, Ms. Scott said that she had a “[l]ong talk with
KRM and Lachlan” and provided Rupert Murdoch with the main points of the talk, saying that
he had “a lot . . . to think about this week.”104
On November 9, 2020, Ms. Scott emailed Rupert Murdoch, noting the importance of
“keep[ing] the audience who loves and trusts us…we need to make sure they know we aren’t
95
Liz Harrington (@realLizUSA), TWITTER (Nov. 3, 2020, 11:52 PM),
https://twitter.com/realLizUSA/status/1323850485699432450.
96
See Gerhard Peters and John T. Woolley, Donald J. Trump, Tweets of November 12, 2020 Online, THE AMERICAN
PRESIDENCY PROJECT, UC SANTA BARBARA, https://www.presidency.ucsb.edu/documents/tweets-november-12-
2020 (last visited Mar. 26, 2023).
97
Dominion MSJ, Ex. 221; Dominion MSJ, Appx. C.
98
Dominion MSJ, Ex. 223.
99
Id.
100
Id.
101
Dominion MSJ at 23-24.
102
Dominion MSJ, Ex. 130, L. Murdoch 145:20-147:24.
103
Dominion MSJ, Ex. 611.
104
Id.
14
abandoning them and still champions for them.”105 Rupert Murdoch responded, “Thanks. All
very true. Lots of sane Fox viewers still believe in Trump.”106 Ms. Scott said “we will highlight
our stars and plant flags letting the viewers know we hear them and respect them.”107 Ms. Scott
emailed Irena Briganti, the Senior Executive Vice President of FNN, stating: “Irena - just spoke
to Lachlan. Can you call Raj [Shah] and walk him through everything we are doing… I’m told
he made a comment that maybe we [are] changing based on our coverage this weekend.”108
From November 10, 2020 through November 12, 2020, FC held an in-person board
meeting in Los Angeles, with all board members, including the former Speaker of the House
Paul Ryan, and business unit leaders present.109 Mr. Ryan noted that it was not implausible that
the meeting included discussions regarding FNN’s coverage of the election conspiracy theories,
and that it was a “topic du jour” that former President Trump would seek to create his own TV
network in direct competition to Fox.110
On November 11, 2020, Mr. Shah shared polling data from YouGov to Ms. Briganti,
which showed that there were “clear declines in favorability, especially with primetime viewers”
for the Fox brand, and followed up later that day, stating, “on our current course, if not already
then by the weekend, opinions of Fox from our core viewers will be underwater” and “I’ve
shared my thoughts with Lachlan and Viet, that bold, clear and decisive action is needed for us to
begin to regain the trust that we’re losing with our core audience.”111
By November 12, 2020, FC’s stock fell 6%, and financial analysts attributed the decline
of FC’s stock to former President Trump’s support for Fox’s competitors Newsmax and One
105
Dominion MSJ, Ex. 619.
106
Id.
107
Dominion MSJ, Ex. 214 at FoxCorp00056541.
108
Dominion MSJ, Ex. 647.
109
Dominion MSJ, Ex. 650; Dominion MSJ, Ex. 620, Ryan 147:13-154:16.
110
Dominion MSJ, Ex. 620, Ryan 156:25-157:6, 174:14-175:2.
111
Dominion MSJ, Ex. 624 at FoxCorp00053724, FoxCorp00053725.
15
America News (“OAN”).112 By November 15, FNN’s daytime and primetime audience had
declined by 34% and 37%, respectively.113 At the same time, Newsmax’s daytime audience
increased nearly six-fold, from 57,000 to 329,000, and its primetime audience tripled from
129,000 to 412,000.114
On November 13, 2020, Mr. Shah reported the drop in viewership and favorability of Fox
News amongst its audience to Lachlan Murdoch, Mr. Dinh, and Ms. Scott, stating “strong
conservative and viewer backlash to Fox that we are working to track and mitigate,” “[b]oth
Donald Trump and Newsmax have taken active roles in promoting attacks on Fox News,” and
“[p]ositive impressions of Fox News among our viewers dropped precipitously after Election
Day to the lowest levels we’ve ever seen.”115 Lachlan Murdoch testified that the drop in Fox’s
rating would “keep him awake” at night, and that he paid close attention to Mr. Shah’s Brand
Protection reports.116
J. ELECTION FRAUD ALLEGATIONS AND DOMINION’S “ROLE”
Amidst the backlash, allegations of election fraud, at first not specifically tied to
Dominion, began to emerge. On November 5, 2020, Ms. Bartiromo posted allegations of vote
“dump[s]” in favor of Biden on social media.117 In response, fellow host Brett Baier stated “[t]he
outcome may or may not change – but they're going to turn over a lot of stones in these states. If
112
Matthew Fox, Fox Corp. Tumbles 6% as Trump Retweets Support for Rival Networks Newsmax and OANN,
BUSINESS INSIDER (Nov. 12, 2020, 12:34 PM), https://markets.businessinsider.com/news/stocks/fox-stock-price-
president-trump-retweets-support-for-rival-networks-2020-11-1029798530.
113
Prior to the election, Fox’s average daytime audience was around 2.439 million. After the election, the average
fell to 1.6 million. Fox’s prime time audience also fell by 37%, from 5.346 million to 3.463 million during the same
timeframe. See Fox News Channel, USTVDB (last visited Mar. 27, 2023), https://ustvdb.com/networks/fox-news/.
114
See Compl. ¶ 56.
115
Dominion MSJ, Ex. 625.
116
Dominion MSJ, Ex. 130, L. Murdoch 147:19-24.
117
Dominion MSJ, Ex. 204. See also Maria Bartiromo (@MariaBartiromo), TWITTER (Nov. 5, 2020, 11:20 AM)
https://twitter.com/MariaBartiromo/status/1324386054254809091?lang=en.
16
there's any merit to these stories about more votes than registered voters, or votes with no
signatures, etc-- then what??? . . . NO evidence of fraud. None.”118
On November 6, 2020, Ms. Powell appeared on Lou Dobbs Tonight and brought up a
conspiracy theory called “Hammer and Scorecard,” without tying the theory to Dominion.119
On November 7, 2020, Ms. Pirro’s show scheduled that day was cancelled because
executives were worried about her discussing conspiracy theories.120
FNN’s coverage began to focus on Dominion specifically. Dominion contests twenty
statements (the “Statements”), arguing that the Statements constitute actionable defamation per
se. Dominion divides the Statements at issue into four categories: (1) “the fraud lie,” (2) “the
algorithm lie,” (3) “the Venezuela lie,” and (4) “the kickback lie.” The Statements are attached
to this decision.121
K. FACT-CHECKING
1. Brainroom
FNN has a centralized research department called the “Brainroom” that conducts internal
fact-checking.122 On November 13, 2020, the Brainroom completed a fact-check regarding the
Dominion allegations,123 which stated:
• There was “no evidence of widespread fraud.”124
• “Claims about Dominion switching or deleting votes are 100% false” and claims that
votes for Former President Trump were deleted are “mathematically impossible.”125
118
Dominion MSJ, Ex. 176; see also Dominion MSJ Ex. 97, Baier 39:3-41:1 (agreeing in deposition that at the time
of writing the text, he did not believe there was evidence of fraud).
119
Dominion MSJ, Ex. 206 at FNN018_02260592, FNN018_02260599.
120
See Dominion MSJ, Ex. 293.
121
See Appx.
122
Dominion MSJ, Ex. 101, Bruster 147:3-7; see also Dominion MSJ, Ex. 106, Clark 127:6-9, 270:9-12; Dominion
MSJ, Ex. 126, Komissaroff 48:12-13.
123
Dominion MSJ, Ex. 168.
124
Id. at FNN015_00132223
125
Id. at FNN015_00132225.
17
• “Dominion has no company ownership relationships with any member of the Pelosi
family, the Feinstein family, or the Clinton Global Initiative.”126
• “The U.S. Department of Homeland Security’s Cybersecurity and Infrastructure
Security Agency (CISA) has debunked viral claims about the existence of a secret
CIA program for vote fraud called Hammer and Scorecard.”127
• “No credible reports or evidence of any software issues exist.”128
• “Claims about software updates being done the night before Election Day are 100%
false.”129
• “There are no issues with the use of Sharpie pens related to hand-marked paper
ballots.”130
• “All U.S. voting systems must provide assurance that they work accurately and
reliably as intended under federal U.S. Election Assistance Commission and state
certification and testing requirements.”131
On November 21, 2020, Mr. Komissaroff asked the Brainroom to “get . . . the facts about
the Dominion situation” and “separate facts from fiction.”132 The Brainroom forwarded Mr.
Komissaroff the November 13 fact-check it had previously completed.133 Mr. Komissaroff
testified that he put in the request after being asked to do so by Mr. Lowell and either Mr.
Wallace or Ms. Scott.134 Mr. Clark confirmed that if the Brainroom concluded that the
allegations against Dominion were false, the allegations should not have been aired.135
2. Dominion Outreach
Beginning on November 12, 2020, Dominion sent Fox over 3600 “Setting The Record
Straight” (“STRS”) emails to a number of FNN’s reporters and producers, including those who
oversaw and managed content for Lou Dobs Tonight, Sunday Morning Futures, Mornings with
126
Id.
127
Id.
128
Id.
129
Id. at FNN015_00132226.
130
Id.
131
Id.
132
Dominion MSJ, Ex. 126, Komissaroff 44:7-49:1.
133
See Dominion MSJ, Ex. 159; id. at 49:7-23.
134
Dominion MSJ, Ex. 126, Komissaroff 44:7-49:1.
135
See Dominion MSJ, Ex. 106, Clark 272-17:23; see also Dominion MSJ, Ex. 133, Petterson 172:10-13 (agreeing
that if Brainroom concludes something is false, it should not air).
18
Maria, Justice with Judge Pirro, Hannity, and Tucker Carlson Tonight.136 The STRS emails
provided facts and links debunking Fox’s statements.137 Among the cited references in the email
was the CISA “#Protect2020 Rumor vs. Reality” public advisory.138 Mr. Lowell testified that
the STRS emails sent on November 13 and November 14 were widely circulated throughout
FNN.139
On November 16, 2020, Tony Fratto, Dominion’s communications consultant, reached
out to Ms. Scott and Mr. Wallace personally, alerting them that the allegations were “verifiably
wrong information.”140 Mr. Fratto offered an off-the-record briefing to walk through
Dominion’s business and concerns.141 Mr. Wallace and Mr. Fratto spoke on the phone, but Mr.
Wallace could not recall the specifics of the conversation beyond that they discussed
Dominion.142 Mr. Fratto testified that he advised Mr. Wallace that some of the Fox guests were
spreading lies and tried to appeal to Fox’s “journalistic ethics.”143 After that evening’s broadcast
of Lou Dobbs Tonight, Mr. Fratto emailed Mr. Wallace, writing “[m]ore fucking out and lies.
Honestly. He is a disgrace.”144 Mr. Wallace forwarded the email to Ms. Petterson and Ms.
Cooper, stating “I spoke with him earlier to calm him, but it doesn’t look like it worked. Think
we need to keep an eye out here on this storyline – or at least make sure we include their
response.”145 On November 24, Mr. Fratto emailed Mr. Wallace again.146
136
Dominion MSJ, Ex. 128 Lowell 388:8-391:19, 412:23-413:24, 420:5-13, 541:13-544:21; Dominion MSJ, Ex.
331; Dominion MSJ, Ex. 338; Dominion MSJ, Ex. 339; Dominion MSJ, Ex. 340; Dominion MSJ, Exs. 343-49.
137
Dominion MSJ at 93-94.
138
Id. at 95.
139
Dominion MSJ, Ex. 128, Lowell 391:17-19, 420:10-13, 430:17-431:22.
140
Dominion MSJ, Ex. 235 at FNN008_00022197.
141
Id.
142
See Dominion MSJ, Ex. 147, Wallace 209:17-212:5.
143
Dominion MSJ, Ex. 119, Fratto 231:10-234:21.
144
Dominion MSJ, Ex. 236 at FNN008_00022195.
145
Id.
146
Dominion MSJ, Ex. 238.
19
On November 20, 2020, Dominion sent Fox’s General Counsel a six-page letter, with
citations, setting straight the allegations.147
3. State Audits
State audits and recounts were conducted for contested areas. In Maricopa County,
Arizona (the only county in the state that used Dominion machines148), the Maricopa Board of
Supervisors Chairman, Bill Gates, and the County Recorder, Stephen Richer, confirmed they had
not seen evidence of vote manipulation and did not believe vote manipulation had occurred.149
Maricopa County completed a hand recount audit that confirmed the election results,150 which
Mr. Gates stated had yielded a one-hundred-percent match in a public letter.151 Additionally,
two accredited independent testing laboratories each completed an audit, neither of which
showed evidence of manipulation.152
In Georgia, the Secretary of State commissioned an independent testing laboratory to
complete a forensic audit of a sampling of Dominion’s machines.153 On November 17, 2020, the
audit concluded there was no evidence of tampering.154 The Secretary of State announced on
November 19, 2020 that Georgia’s statewide hand recount “confirmed the original result of the
election.”155 Upon request of the Trump campaign, Georgia conducted another recount that
again confirmed the election results.156
147
Dominion MSJ, Ex. 237.
148
Dominion MSJ, Ex. 183, Poulos Aff. ¶ 10.
149
Dominion MSJ, Ex. 120, Gates 35:5-36:12; Dominion MSJ, Ex. 139, Richer 22:14-23:11.
150
Dominion MSJ, Ex. 209 at DOM_0071808361.
151
Dominion MSJ, Ex. 210
152
See Dominion MSJ, Ex. 300; Dominion MSJ, Ex. 301; Dominion MSJ, Ex. 136, Richer 53:14-56:23.
153
Dominion MSJ, Ex. 303-A; Dominion MSJ, Ex. 222, Raffensperger Aff. ¶ 4.
154
Dominion MSJ, Ex. 303-A; Dominion MSJ, Ex. 222, Raffensperger Aff. ¶ 4.
155
Dominion MSJ, Ex. 303-D; see also Dominion MSJ, Ex. 303-B.
156
Dominion MSJ, Ex. 303-E.
20
Michigan conducted post-election audits that verified the election results.157 Michigan’s
Senate Oversight Committee then conducted its own investigation and came to the same
conclusion.158
The Secretary of the Commonwealth of Pennsylvania saw no evidence suggesting
Dominion stole the election.159 This is supported by the statutorily mandated statistical sampling
audit and subsequent risk-limiting audits, which confirmed the vote count was accurate on
November 24, 2020.160
4. Other Public Sources
In a public advisory dated November 4, 2020, CISA announced that every state had
voting safeguards to ensure vote counting was accurate.161 The same day, the National
Association of State Election Directors and the National Association of Secretaries of State
issued a statement (“NASED/NASS Joint Statement”) that “more than 100 million votes were
safely and securely cast.”162 On November 12, 2020, a joint statement from CISA and others
(“CISA Statement”) was released, calling the election “the most secure in American history” and
stating “[t]here is no evidence that an voting system deleted or lost votes, changed votes, or
was in any way compromised.”163 On November 16, 2020, fifty-nine experts jointly announced
that there was “no credible evidence of computer fraud in the 2020 election outcome” (“Experts’
Joint Statement”).164 On December 1, 2020, former U.S. Attorney General William Barr
157
See Dominion MSJ, Ex. 306-B.
158
Dominion MSJ, Ex. 306-C.
159
Dominion MSJ, Ex. 100, Boockvar 45:21-46:14, 50:7-16, 178:13-17.
160
See id. at 46:19-49:5; 25 Pa. Stat. § 3031.17 (requiring counties to conduct a “statistical recount of a random
sample of ballots”); Dominion MSJ, Ex. 354.
161
See Dominion MSJ, Ex. 556-A; Dominion MSJ, Ex. 556-B.
162
Dominion MSJ, Ex. 311.
163
Dominion MSJ, Ex. 190 (emphasis in original).
164
Dominion MSJ, Ex. 315.
21
announced that the Justice Department had not uncovered evidence of widespread voter fraud
and had not seen anything that would change the outcome of the election.165
L. FOX’S INTERNAL MEETINGS
From November 2020 to March 2021, Fox held editorial meetings twice a day, one in the
morning and one in the afternoon.166 Mr. Lowell testified that “senior editorial leadership”
attended these meetings.167 According to an interrogatory response, the “senior editorial
leadership” present, at different times, included: Mr. Berry, Ms. Cooper, Mr. Komissaroff, Mr.
Lowell, Ms. Petterson, Ms. Rosenberg, Mr. Sammon, Mr. Schrier, Ms. Scott, and Mr. Wallace,
and at times, Lachlan and Rupert Murdoch.168
At the morning meetings, the group would provide updates on programming and
interviews set to take place that day, and in the afternoons they would discuss breaking news
updates and coverage for the next day.169 At her deposition, Ms. Cooper stated that the executive
team discusses the need to cover stories factually and responsibly.170 Mr. Clark testified that
lower-level executives in charge of the shows would sometimes receive editorial guidance.171
Each show additionally held its own meetings. For Lou Dobbs Tonight, Mr. Dobbs, Mr.
Field, Mr. Hopper and another met or held calls on show days.172 For Hannity Show, Mr.
Hannity, Ms. Fazio, Mr. Samuel, and sometimes Mr. Berry met or held calls on show days. For
Tucker Carlson Tonight, Mr. Wells, Mr. McCaskill and others met or held calls on show days.173
165
Dominion MSJ, Ex. 316.
166
Dominion MSJ, Ex. 127, Lowell 215:20-216:16.
167
Id.
168
Dominion MSJ, Ex. 374, No. 83.
169
Dominion MSJ, Ex. 108, Cooper 56:1-57:23; Dominion MSJ, Ex. 126, Komissaroff 26:12-14; Dominion MSJ,
Ex. 127, Lowell 202:10-203:7.
170
See Dominion MSJ, Ex. 108, Cooper 67:14-68:2; see also Dominion MSJ, Ex. 126, Komissaroff 30:6-11.
171
See Dominion MSJ, Ex. 106, Clark 85:13-15.
172
Dominion MSJ, Ex. 374, No. 83.
173
Id.
22
For Sunday Morning Futures, Ms. Grossberg, Mr. Clark, Ms. Bartiromo, and possibly others met
or spoke on the phone.174 For Justice w/ Judge Jeanine, Ms. Pirro, Mr. Andrews, and Ms. Voit
held non-regularly occurring conference calls.175
M. FOX’S INTERNAL DIALOGUE ABOUT THE ALLEGATIONS
As the theories about Dominion circulated, Fox employees became guarded. After Ms.
Bartiromo’s “vote dumping” tweet, Mr. Baier told Mr. Wallace that “none of [it] is true as far as
we can tell.”176 The next day, after Ms. Powell discussed Hammer and Scorecard on Lou Dobbs
Tonight, Rupert Murdoch emailed Ms. Scott that “we should watch Sean especially” and “[i]f
Biden holds Az, Nevada, Georgia, and Pa very hard to credibly cry foul everywhere.”177
On November 12, 2020, Tommy Firth, the Executive Producer of The Ingraham Angle,
texted Mr. Mitchell that “[t]his dominion shit is going to give me a fucking aneurysm – as many
times as I’ve told Laura it’s bs, she sees shit posters and trump tweeting about it – she wanted to
invite an 8chan poster on about this.”178 Mr. Mitchell said it was “the Bill Gates/microchip angle
to voter fraud” and later checked in, asking Firth how it was going with the “kooks?”179 Mr.
Firth said “I beat her back on dominion saying we would have to tell the truth and this make the
president look like an idiot and expose you and maybe fox to his continued wrath.”180
The same day, after a FNN reporter fact-checked former President Trump’s tweet about
Dominion, Mr. Carlson sent the tweet to Mr. Hannity and said “Please get her fired. . . . It’s
measurably hurting the company. The stock price is down.”181
174
Id.
175
Id.
176
Dominion MSJ, Ex. 418 at FNN071_04502985.
177
Dominion MSJ, Ex. 151.
178
Dominion MSJ, Ex. 229.
179
Id.
180
Id.
181
Dominion MSJ, Ex. 230 at FNN035_03890511.
23
On November 14, 2020, during FNN’s coverage of a rally supporting former President
Trump, Lachlan Murdoch told Ms. Scott that “News guys have to be careful how they cover this
rally. So far some of the side comments are slightly anti, and they shouldn’t be. The narrative
should be this is a huge celebration of the president.”182 Ms. Scott responded: “Yes thanks.”183
On the same day, when the CEO of News Corporation, Robert Thomson, sent Rupert Murdoch
an article about election fraud, Rupert Murdoch responded, “[b]ut where’s the evidence?”184
On November 14, 2020, Mr. Clark received a Brainroom fact-check of Ms. Pirro’s
opening debunking election fraud allegations.185
In an email sent November 16, 2020, Rupert Murdoch said to Ms. Scott: “Trump will
concede eventually and we should concentrate on Georgia, helping any way we can. We don't
want to antagonize Trump further, but Giuliani taken with a large grain of salt. Everything at
stake here.”186
The same day, Mr. Carlson received a text from a redacted source that read: “From WH
… the claims about dominion have been debunked.”187 Mr. Carlson said, “[f]or sure? I asked
Sidney for evidence. She never responded.”188 The person responded: “She’s a psychopath.
She’s getting Trump all spun up and has zero evidence. Same with Rudy. NSC cyber did a
thorough analysis. There’s nothing to it.”189 Mr. Carlson called her a “[c]razy person.”190 Mr.
Carlson said that he was asking Ms. Powell for evidence and told her: “You’ve convinced [Fox
viewers] that Trump will win. If you don’t have conclusive evidence of fraud at that scale, it’s a
182
Dominion MSJ, Ex. 627.
183
Id.
184
Dominion MSJ, Ex. 630.
185
See Ex. 461; Dominion MSJ, Ex. 106, Clark 273:19-279:20, 281:13-282:23.
186
Dominion MSJ, Ex. 239.
187
Dominion MSJ, Ex. 240 at FNN035_03891178.
188
Id.
189
Id.
190
Id.
24
cruel and reckless thing to keep saying.”191 The redacted source texted back that Ms. Powell
“won’t respond because she has no evidence.”192 Mr. Carlson replied “[t]hen it’s totally
shocking to me that she keeps saying that. Seriously.”193 On November 19, 2020, Mr. Carlson
texted Ms. Ingraham, another FNN host, that “Sidney Powell is lying by the way. I caught her.
It’s insane.”194 Ms. Ingraham responded: “Sidney is a complete nut. No one will work with her.
Ditto with Rudy.”195
On November 19, 2020, Rupert Murdoch emailed Ms. Scott, calling Mr. Giuliani’s press
conference “[t]errible stuff damaging everybody” and said it was “[p]robably hurting us too.”196
The same day, Rupert Murdoch emailed News Corporation CEO Robert Thomson, calling the
press conference “[r]eally crazy stuff” and “damaging.”197
On November 20, 2020, Mr. Schreier received notice from the Brainroom that Ms.
Bartiromo’s reporting on election fraud allegations was unreliable and based on sources FNN
“would never use as a primary.”198
On November 20, 2020 and 21, 2020, Mr. Carlson said he was not going to address Ms.
Powell’s Venezuelan affidavit and called it “ludicrous.”199
On November 22, 2020, Mr. Shah sent a text to Mr. Pfeiffer that said “so many people
openly denying the obvious that Powell is clearly full of it.”200 Mr. Pfeiffer called Ms. Powell “a
fucking nutcase.”201 On November 23, Mr. Shah emailed Lachlan Murdoch, Mr. Dinh, and Ms.
191
Dominion MSJ, Ex. 240 at FNN035_03891179.
192
Id.
193
Id.
194
Dominion MSJ, Ex. 241 at FNN035_03891091.
195
Id.
196
Dominion MSJ, Ex. 181.
197
Dominion MSJ, Ex. 156.
198
Dominion MSJ, Ex. 409 at FNN011_00104922.
199
Dominion MSJ, Ex. 171 at FNN035_03890767.
200
Dominion MSJ, Ex. 271 at FoxCorp00056388.
201
Id.
25
Scott about coordinating an effort to generate Trump pushback on “Powell’s outlandish voter
fraud claims.”202 The same day, the former President of ABC News forwarded an article to
Rupert Murdoch titled “Fox News Identity Crisis: Indulge Trump’s Election Conspiracy or
Reject It …and Watch Its Audience Flee?”203 Rupert Murdoch responded that “generally, we are
navigating it pretty well,”204 which he clarified in his deposition he meant that Fox was
“reporting it well” and “straddle[ing] the issue.”205
In December 2020, Mr. Clark told Ms. Bartiromo that she could no longer book Ms.
Powell or Mr. Giuliani.206
On December 6, 2020, Mr. Ryan texted Rupert and Lachlan Murdoch, writing: “we are
entering a truly bizarre phase of this where [former President Trump] has actually convinced
himself of this farce and will do more bizarre things to delegitimize the election. I see this as a
key inflection point for Fox, where the right thing and the smart business thing to do line up
nicely.”207
On December 7, 2020, Rupert Murdoch wrote to Lachlan Murdoch, stating, “[c]all me
later re Trump and Paul. Trump on Saturday sounded really crazy.”208 On the same day, Rupert
Murdoch told Ms. Scott that due to the increasingly questionable rhetoric from former President
Trump, including asking the Georgia Governor to help overturn the election, it was “all making
it harder to straddle the issue! We should talk through this. Very difficult and we should include
Lachlan later.”209
202
Dominion MSJ, Ex. 163.
203
Dominion MSJ, Ex. 636.
204
Dominion MSJ, Ex. 600, R. Murdoch 139:2-4.
205
Id. at 139:14-19; Dominion MSJ, Ex. 639; Dominion MSJ, Ex. 652.
206
Dominion MSJ, Ex. 106, Clark 34:6-35:5; Dominion MSJ, Ex. 379.
207
Dominion MSJ, Ex. 620, Ryan 266:25- 267:24, 269:6-23; see id. 261:24-262:4.
208
Dominion MSJ, Ex. 660.
209
Dominion MSJ, Ex.639; Dominion MSJ, Ex.652.
26
On December 24, 2020, Mr. Carlson texted Jenna Ellis, one of former President Trump’s
lawyers, that “[i]t’s hard to overstate the damage having Sidney Powell on stage did to the cause
of fair elections. That was really reckless and stupid.”210
On January 5, 2021, Rupert Murdoch emailed Ms. Scott that it was suggested the “prime
time three should independently or together say something like ‘the election is over and Joe
Biden won.’”211 Ms. Scott forwarded it to Ms. Cooper and said “I told Rupert privately they are
all there – we need to be careful about using the shows and pissing off the viewers but they know
how to navigate.”212
On January 6, 2021, former President Trump called into Lou Dobbs Tonight while the
U.S. Capital was under attack.213 Ms. Petterson notified Ms. Scott, Ms. Wallace, and Ms.
Briganti that former President Trump was not permitted to appear on the show that day.214
Rupert Murdoch told Ms. Scott not to have any more former President Trump appearances on
FNN.215
On January 11, 2021, FC board member Anne Dias told the Murdochs that “considering
how important Fox News has been as a megaphone for Donald Trump, directly or indirectly, I
believe the time has come for Fox News or for you, Lachlan, to take a stance. It is an existential
moment for the nation and for Fox News as a brand.”216 When Lachlan Murdoch emailed
Rupert Murdoch to discuss Anne Dias’s email, Rupert Murdoch responded: “Just tell her we
have been talking internally and [] intensely along these lines, and Fox News, which called the
210
Dominion MSJ, Ex. 172.
211
Dominion MSJ, Ex. 277.
212
Id.
213
Dominion MSJ, Ex. 665.
214
Id.
215
Dominion MSJ, Ex. 600, R. Murdoch 260:21-25.
216
Id. at 273:1-11.
27
election correctly, is pivoting as fast as possible. We have to lead our viewers which is [] not as
easy as it might seem.”217
Other FNN hosts (who did not make any of the statements at issue) also privately
doubted the allegations. On December 1, 2020, Bret Baier, the host of Special Report with Bret
Baier, sent an email saying that the allegations “[c]an’t be remotely true.”218 Lucas Tomlinson,
another Fox reporter, responded to the email that day, calling the allegations “100% not true”
and “complete bullshit.”219 On December 16, 2020, Dana Perino, a host on Fox and Friends,
called the allegations “nonsense” and said she was losing sleep “churning on the lies that are
being told on our network.”220
N. PROCEDURAL POSTURE
On March 26, 2021, Dominion filed its Complaint against FNN, alleging defamation per
se.221 On May 18, 2021, FNN filed a Motion to Dismiss for Failure to State a Claim.222
Following briefing, the Court denied the motion on December 16, 2021 (“Dominion I”).223 On
February 14, 2022, Dominion filed its Answer and Defenses to FNN’s Counterclaim.224 FNN
denies the allegations and lists eight defenses.225
217
Id. at 274:19-275:15; Dominion MSJ, Ex. 620, Ryan 328:3-13.
218
Dominion MSJ, Ex. 367 at FNN018_02492482.
219
Id. at FNN_01802492481.
220
Dominion MSJ, Ex. 371 at FNN021_03851306.
221
Compl.
222
Defs.’ Mot. to Dismiss, May 18, 2021 (D.I. No. 45).
223
Op. Den. Def.’s Mot. to Dismiss (“Dominion I”), Dec. 16, 2022 (D.I. No. 142).
224
See Countercl. Answer.
225
Id. at 4–6. Dominion asserts that (1) FNN fails to state a claim upon which relief can be granted; (2) FNN is not
entitled to costs and attorney’s fees because Dominion’s lawsuit has a substantial basis in fat and law; (3) FNN is
not entitled to damages because it cannot demonstrate Dominion’s suit was commenced or continued for the purpose
of harassing or inhibiting speech; (4) FNN’s counterclaim is barred because its statements were not constitutionally
protected speech; (5) FNN is barred and/or limited by its own bad faith or unclean hands; (6) FNN is barred because
its Counterclaim violates Dominion’s rights under the First and Seventh Amendment; (7) FNN’s Counterclaim is
frivolous under New York Civil Practice Law and Rules § 8303-a; and (8) FNN’s Counterclaim is without merit and
without substantial basis in fact and law within the meaning of New York Civil Rights Law § 70-a. Id.
28
Dominion filed its Complaint against FC and Fox Broadcasting Company LLC, on
November 8, 2021, alleging defamation per se.226 On December 30, 2021, FC and Fox
Broadcasting Company LLC collectively filed a Motion to Dismiss under Superior Court Civil
Rule 12(b)(6).227 Following briefing, the Court granted the motion as to Fox Broadcasting
Company LLC, and denied the motion as to FC (“Dominion II”).228 On July 6, 2022, FC filed its
Answer, Defenses and Counterclaim.229
On April 27, 2021, the Court entered an order holding that New York tort law applied.230
On December 1, 2022, the defendants filed a Joint Motion to Consolidate.231 The Court
held an omnibus hearing on the motion (and other matters) on December 21, 2022.232 The Court
granted the motion on December 22, 2022.233
The Court then issued an Order Setting Briefing on Summary Judgment Motions.234
Pursuant to that Order, Dominion filed the Dominion Motion on January 17, 2023.235 On
February 8, 2023, FC and FNN each filed an Answering Brief in Opposition to Plaintiff’s
Motion for Summary Judgment236 On February 20, 2023, Dominion filed its Reply Brief in
226
FC Compl., Nov. 8, 2021 (FC D.I. No. 1).
227
Defs.’ Mot. to Dismiss, Dec. 30, 2021 (FC D.I. No. 14).
228
Op. Upon Defs.’ Mot. to Dismiss, June 21, 2022 (FC D.I. No. 40).
229
Def.’s Ans., Defenses and Counterclaim, July 6, 2022 (D.I. No. 43).
230
D.I. No. 40. The Court made comments at the March 21-22 hearing that Delaware law may control on punitive
damages. After a review of the caselaw, the Court agrees with the parties that New York law applies to the issue of
punitive damages. See, e.g., Jackson v. Bridgestone Americas Tire Operations, LLC, 2015 WL 13697682, at *2-6
(Del. Super. Nov. 24, 2015)(engaging in a Delaware choice of law analysis to determine whether Michigan or
Delaware law should apply).
231
Mot. to Consolidate, Dec. 1, 2022 (D.I. No. 859).
232
Omnibus Hearing, Dec. 21, 2022 (D.I. No. 886).
233
Order Consolidating for Trial C.A. No. N21C-03-257 EMD and C.A. No. N21C-11-082 EMD, Dec. 22, 2022
(D.I. No. 890).
234
Order Setting Briefing on Summ. J. Mots., Jan. 6, 2023 (D.I. No. 920).
235
Dominion’s Mot. for Summ. J. on Liability of FNN and FC, Jan. 17, 2023 (D.I. No. 951).
236
Def. FC’s Ans. Br. in Opp’n. to Pls.’ Mot. for Summ. J., Feb. 8, 2023 (D.I. No. 1034); Def. FNN’s Ans. Br. in
Opp’n to Pls.’ Mot. for Summ. J., Feb. 8, 2023 (D.I. No. 1033).
29
Support of its Motion for Summary Judgment Against Fox News Network, LLC and Fox
Corporation.237
Dominion also filed a Motion to Dismiss or Alternatively for Summary Judgment on Fox
News Network, LLC’s Amended Counterclaim on January 27, 2023.238 Fox did not respond,
however, the parties previously briefed the issue.239
On January 17, 2023, FNN and FC filed their FNN Motion and FC Motion, seeking
summary judgment on Dominion’s defamation claims.240 On February 8, 2023, Dominion filed
its Dominion’s Combined Opposition to Fox News Network, LLC’s and Fox Corporation’s Rule
56 Motions for Summary Judgment.241 On February 20, 2023, FC filed its Defendant Fox
Corporation’s Reply Brief in Support of Its Motion for Summary Judgment, and FNN filed
Defendant Fox News Network, LLC’s Reply Brief in Support of Motion for Summary
Judgment.242
As noted above, the Court held the Hearing on March 21, 2023, and March 22, 2023. At
the conclusion of the Hearing, the Court took the various motions under advisement.
237
Dominion’s Reply Br. in Supp. of its Mot. for Summ. J. Against FNN and FC, Feb. 20, 2023 (D.I. No. 1082).
238
Dominion’s Mot. to Dismiss or Alternatively Mot. for Summ. J. on FNN’s Am. Countercl. (“Dominion’s Mot. to
Dismiss Countercl.”), Jan. 27, 2023 (D.I. No. 1018).
239
See Def.’s Br. on New York’s anti-SLAPP Law (“Fox’s anti-SLAPP Br.”), Sep. 19, 2022 (D.I. No. 595); Pls.’
Response to Def.’s Br. on New York’s anti-SLAPP Law (“Dominion’s anti-SLAPP Response”), Sep. 28, 2022 (D.I.
No. 634); Def.’s Reply Br. on New York’s anti-SLAPP Law (“Fox’s anti-SLAPP Reply”), Oct. 10, 2022 (D.I. No.
699).
240
D.I. 952; D.I. 953; D.I. 955; D.I. 956.
241
D.I. No. 1036.
242
D.I. No. 1079; D.I. No. 1080.
30
III. PARTIES’ CONTENTIONS
A. THE FOX MOTION AND THE FC MOTION.
1. The Fox Motion
FNN argues that the Statements are not defamatory as a matter of law. FNN contends
that no reasonable viewer would understand that FNN’s coverage and commentary on the
Dominion allegations as presenting information that FNN determined to be true. Instead, FNN
asserts that the reasonable viewer would understand that FNN is merely “fulfilling its journalistic
duty to ‘present[] newsworthy allegations made by others.’”243
Additionally, FNN argues that under New York common-law principles and the First
Amendment, the reporting of a newsworthy allegation by the press is not defamatory, even if the
allegations are later found to be false.244 FNN cites to caselaw to argue that when the press
repeated allegations which are later proven to be false, even if the allegations are from
“questionable” sources, a reasonable viewer would understand the allegations as mere claims,
not reports of facts.245
243
FNN MSJ at 42.
244
Id. at 38.
245
FNN cites to Page v. Oath Inc., 270 A.3d 833 (Del. 2022) (Delaware Supreme Court did not find that Yahoo!
News and Huffington Post defamed Carter Page when they published articles repeating allegations from the “Steele
Dossier” which stated that Page met with high-ranking Russian officials, because the articles “made clear that the
allegations were unsubstantiated and under investigation” by using phrases like “seeking to determine” and “at their
alleged meeting.”); Croce v. N.Y. Times Co., 930 F.3d 787 (6th Cir. 2019) (Sixth Circuit found that the New York
Times article did not defame the plaintiff even though it reported on false allegations against the plaintiff, because a
reasonable reader would understand that the article was only presenting newsworthy allegations made by others, not
presenting such allegations as fact); Brian v. Richardson, 660 NE.2d 1126 (N.Y. 1995) (New York Court of Appeals
found that the defendant’s article was not defamatory despite the article repeating false claims made by questionable
sources, and the defendant offered his own view that these sources were credible and the allegations should be
investigated, because the reported claims were identified in the articles as being unconfirmed, and a reasonable
reader would not have understood the defendant’s article as offering the claims as actual assertions of fact); Vengroff
v. Coyle, 231 A.d.2d 624, 625 (N.Y. App. Div. 1996) (“[G]iven the use of the words ‘apparently’, ‘rumored’, and
‘reportedly’ in the letter, a reasonable reader would understand the statements made about the plaintiffs ‘as mere
allegations to be investigated rather than as facts.’”) (emphasis in original).
31
FNN also maintains that the Statements are not actionable under the neutral report
privilege, the fair report privilege, and opinion privilege. FNN posits that FNN’s coverage of
former President Trump’s allegations regarding Dominion and election fraud was newsworthy.
As such, the FNN hosts “informed their audiences at every turn that the allegations were just
allegations that would need to be proven in court . . . [a]nd to the extent some hosts commented
on the allegations, that commentary is independently protected as opinion.”246 FNN makes a
hypothetical argument that if Dominion had their way, anyone who repeats a false allegations by
a public official would have committed defamation, which contradicts the First Amendment and
its embodiment of a “profound national commitment to the principle that debate on public issues
should be uninhabited, robust, and wide-open.”247
Furthermore, FNN contends that a defamation cause of action requires the plaintiff to
produce “clear and convincing” evidence showing that the statements in question were made
with actual malice. FNN asserts that Dominion fails to show that FNN made or published the
Statements with actual malice. FNN argues that it provided a forum for newsworthy claims and
denials to be debated on, and the FNN hosts did not take the allegations at face value when their
guests presented the allegations.
Finally, FNN argues that it is entitled to summary judgment because Dominion failed to
show that (i) that Dominion actually suffered any economic injury, and (ii) FNN’s actions were
the cause of any economic harm. FNN notes that this is true even if the Court finds a triable
issue of fact as to one or more of the contested statements, and the jury could reasonably find
evidence of actual malice.
246
FNN MSJ at 38-39.
247
Id. at 47 (citing Sullivan v. N.Y. Times, 376 U.S. 254, 270 (U.S. 1964)).
32
2. The FC Motion
FC argues that there is no genuine issue of material fact as to FC’s involvement or
participation in the publication of the Statements, and as to actual malice. FC claims that without
any evidence on the record that Rupert Murdoch or Lachlan Murdoch, or anyone else in FC, had
a direct role in creating or publishing the contested statements made on FNN shows, Dominion’s
claims against FC fail.248 FC points to the testimony of FNN show hosts and executives who all
uniformly answered in the negative when they were asked whether they communicated with any
FC employees, including Rupert Murdoch and Lachlan Murdoch, regarding Dominion or the
election fraud allegations.249 As FC pleads, “it is Fox News, not Fox Corporation, that controls
the content of Fox News shows.”250
FC also contends that it cannot be held vicariously liable for FNN’s actions under the
“agency” theory, or by “piercing the corporate veil.”251 FC argues that the caselaw rejects the
notion that a parent company can be held vicariously liable for the actions of its subsidiary,
either by “piercing the corporate veil” or under the theory of agency, absent a showing that the
parent company “exercises complete dominion and control over the subsidiary” or that the
subsidiary was “wholly dominated and controlled by the parent corporation such that piercing
the corporate veil is justified.”252 FC also notes that the Court in Dominion II declined to adopt
the vicarious liability theory argued by Dominion.
FC adopts the arguments made by FNN on damages and punitive damages.
248
FC MSJ at 9.
249
Id. at 9-14.
250
Id. at 23.
251
Id. at 26.
252
Id. at 26-27, (citing Royal Indus. Ltd. v. Kraft Foods, Inc., 926 F. Supp. 407, 413 (S.D.N.Y. 1996) and Stern v.
News Corp, 2010 WL 5158635, at *4 (S.D.N.Y. Oct. 14, 2010)).
33
3. Dominion’s Combined Response to the FNN Motion and the FC Motion
Dominion disagrees with FNN and FC. Dominion maintains that the Court should deny
the FNN Motion and the FC Motion because the facts show that Fox knowingly or recklessly
published false conspiracy theories about Dominion. Moreover, Dominion contends that the
dissemination of the false allegations by Fox caused substantial damage to Dominion’s business
and reputation.
Dominion argues that individuals in FC and FNN, including Rupert Murdoch, Lachlan
Murdoch, and Ms. Scott, as well as the FNN hosts, knew at all relevant times that the allegations
of Dominion “rigging the election” were false and baseless. Despite this, and in response to
intense backlash from viewers after the election and declining ratings and profits, Dominion
asserts that Fox chose to “straddle the line” and publish the Statements to win back viewers.
Dominion claims that Rupert Murdoch and Lachlan Murdoch were intrinsically involved
in the day-to-day operations of FNN, to the point of directing FNN executives and producers on
the tone and the narrative that the FNN hosts and reporters should adopt on the air, which guests
should be allowed on the shows, and how the allegations regarding Dominion should be handled.
Dominion alleges that FC’s level of involvement in the operations and management of its
subsidiary go beyond a question of agency or vicarious liability and constitutes actual malice on
the part of FC.
Lastly, Dominion argues that the Court should reject FNN’s arguments on the
applicability of the neutral report privilege because the Court of Appeals of New York rejected
its adoption. Additionally, Dominion contends that FNN’s arguments regarding the fair report
privilege and the privilege for opinion should be rejected. Dominion maintains that (i) the
Statements were not made in reference to actual, ongoing lawsuits or official investigations
34
involving Dominion and election fraud, and (ii) a reasonable viewer would not have understood
the contested statements as genuine opinions of the hosts, but as assertions of fact.
B. THE DOMINION MOTION
1. Dominion
Dominion contends that summary judgment should be granted in its favor because the
statements were (1) false; (2) “of and concerning” Dominion; (3) published by Fox; (4)
defamatory per se; and (5) made with actual malice.253 Dominion does not move for summary
judgment on damages.
On the first point, Dominion argues that “undisputed evidence,” including state audits
and recounts, certification and testing, additional public evidence, sworn testimony, Dominion’s
contemporaneous statements, Dominion’s source code, and Fox’s lack of evidence all prove that
the allegations are false.254 As to the second point, Dominion states that all challenged
statements referred to Dominion by name. With the third point, Dominion argues that FNN
directly published the statements through its broadcasts to viewers, and FC engaged in the
publication and is therefore responsible. In support of the fourth point, Dominion contends that
the statements charged Dominion with a crime and attacked the heart of its business and are thus
defamatory per se. And in support of the final point, Dominion asserts that direct and
circumstantial evidence shows responsible employees at both FC and FNN acted with actual
malice or, at a minimum, reckless disregard.
253
See Dominion MSJ.
254
Id. at 46-76.
35
2. FNN’s Opposition
FNN contends that summary judgment should be denied because (i) the Statements are
not actionable where they are protected by the neutral report privilege; the fair-report privilege,
or privilege for opinions; and (ii) alternatively, Dominion fails to prove actual malice.255
3. FC’s Opposition
FC argues that (i) it did not have a role in the creation or publication of the statements
and (ii) Dominion lacks clear and convincing evidence of actual malice.256
IV. STANDARD OF REVIEW257
The Superior Court Civil Rule 56 governs motions for summary judgment.258 “The Court
will grant summary judgment if, after viewing the record in a light most favorable to the non-
moving party, no genuine issues of material fact exist and the movant is entitled to judgment as a
matter of law.”259 On a motion for summary judgment, the Court “(i) construes the record in the
light most favorable to the non-moving party; (ii) detects, but does not decide, genuine issues of
material fact; and (iii) denies the motion if a material fact is in dispute.”260 The moving party
bears the initial burden of showing the motion is supported by the undisputed facts.261 If the
moving party carries its burden, then the burden shifts to the non-moving party to show a
genuine issue of material fact exists, and that a trial is necessary.262
255
See FNN MSJ Ans. Br.
256
See FC MSJ Ans. Br.
257
On January 27, 2023, the Court held that Superior Court Civil Rule 56 would apply to the parties’ summary
judgment motions. D.I. No. 1017.
258
Super. Ct. Civ. R. 56.
259
CVR Refin., LP v. XL Specialty Ins. Co., 2021 WL 5492671, at *8 (Del. Super. Nov. 23, 2021) (citing Merrill v.
Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992)); Del. Super. Ct. Civ. R. 56.
260
CVR Refin., LP, 2021 WL 5492671, at *8 (citing Judah v. Del. Tr. Co., 378 A.2d 624, 632 (Del. 1977); Merrill,
606 A.2d at 99; Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962)).
261
CVR Refin., LP, 2021 WL 5492671, at *8 (citing Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979)).
262
Id. (citing Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995)).
36
Although summary judgment is “encouraged when possible,”263 there is no “right” to
summary judgment.264 “The Court may deny summary judgment if the Court is not reasonably
certain” whether there is a triable fact issue.265 The Court may also deny summary judgment if
“the Court concludes a more thorough inquiry into, or development of, the facts[] would clarify
the law or its application.”266
Although the parties have each moved for summary judgment, the Court’s discussion of
the contentions need not necessarily be broken down by motion. The Court notes that the
parties’ arguments overlap considerably. As such, the Court will address the issues by element
and/or by defense.
V. DISCUSSION
Dominion asserts claims of defamation per se. Dominion therefore must prove that when
the record is reviewed in a light most favorable to Fox, there are no genuine issues of material
fact as to each element of defamation. Under New York law, a claim for defamation per se
requires the claimant to establish: (i) a false statement, (ii) publication without privilege or
authorization to a third party, (iii) constituting fault as judged by the actual malice standard, and
(iv) that causes special harm or constitutes defamation per se.267 Defamation per se includes
accusations of a serious crime or business harm. 268 In addition, the alleged defamation must be
“of or concerning the plaintiff.”269
263
AeroGlobal Cap. Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 443 (Del. 2005).
264
Telxon Corp. v. Meyerson, 802 A.2d 257, 262 (Del. 2002) (internal quotation marks and citation omitted).
265
CVR Refin., LP, 2021 WL 5492671, at *8 (citing Cross v. Hair, 258 A.2d 277, 278 (Del. 1969)).
266
Id. (citing Alexander Indus., Inc. v. Hill, 211 A.2d 917, 918-19 (Del. 1965)).
267
Kasavana v. Vela, 100 N.Y.S.3d 82, 85-86 (N.Y. App. Div. 2019); Sullivan, 376 U.S. at 280.
268
Kasavana, 100 N.Y.S.3d at 85–86.
269
Chicherchia v. Cleary, 616 N.Y.S.2d 647, 648 (N.Y. App. Div. 1994) (quoting Gross v. Cantor, 200 N.E. 592,
593 (N.Y. 1936)).
37
The parties have done an excellent job of joining the issues. In some instances, however,
the parties conflate the elements. The Court will be addressing the elements individually in an
attempt to methodically set out the decisions on summary judgment.
A. DOMINION IS ENTITLED TO SUMMARY JUDGMENT ON FALSITY.
“To satisfy the falsity element of a defamation claim, plaintiff must allege that the
complained of statement is ‘substantially false.’”270 “Courts typically compare the complained
of language with the alleged truth to determine whether the truth would have a different effect on
the mind of the average reader.”271 Falsity “refers to the content of an allegedly defamatory
statement, not the act of republishing it.”272
The Court will be looking to the Statements and determining whether the Statements are
true of false. These are the “complained of” Statements. Fox invites the Court, in a footnote, to
ignore the Statements in determining falsity.273 Instead, Fox would have the Court look to see if
it is true whether former President Trump made those allegations—purportedly through Ms.
Powell and Mr. Giuliani—and that FNN reported this accurately. Fox is, in essence, trying to
recharacterize what constitutes the “complained of statements.” The New York courts have
rejected this type of approach to falsity.274
270
Franklin v. Daily Holdings, Inc., 135 A.D.3d 87, 94 (N.Y. 1st Dep’t 2015) (quoting Biro v. Condé Nast, 883
F.Supp. 2d 441, 458 (S.D.N.Y. 2012)).
271
Id.272
Zuckerbrot v. Lande, 167 N.Y.S.3d 313, 334 (N.Y. Sup. Ct. 2022). Accord Watson v. NY Doe 1, 439 F.Supp. 3d
152, 161 (S.D.N.Y. 2020) (“[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.’”); Cianci v. New York Times Pub. Co., 639 F.2d 54, 60-61 (2d Cir. 1980) (same).
273
FNN Ans. Br. at 67, n. 15.
274
Zuckerbrot, 167 N.Y.S.3d at 334 (rejecting the defense that “accurately” posting statements of another goes to
publication and not whether the complained of statement is true or false); see also Biro v. Conde Nast, 883 F. Supp.
2d 441, 461 (S.D.N.Y. 2012) (providing that defendants cannot escape liability simply because they are conveying
someone else’s defamatory statements without adopting those statements as their own). See also Pittsburgh Press
Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 386 (1972) (noting, in passing, that the media
“cannot defend a libel suit on the grounds that the falsely defamatory statements are not its own.”).
38
Dominion asserts that “[d]enying summary judgment on falsity requires this Court to find
that a reasonable juror today could think that Dominion actually committed election fraud.”275
Christopher Stirewalt, Fox’s Political Editor, testified that “no reasonable person” would have
believed the allegations.276 Dominion states that in discovery responses and binding corporate
representative testimony, Fox has conceded falsity as to Smartmatic ownership and the
“Venezuela lie.”277 As to the “fraud lie,” “algorithm lie,” and the “kickback lie,” Dominion
argues that Fox admitted it does not have the evidence to confirm or deny falsity.”278
Beginning with the “election lie,” Dominion points to state audits and recounts,
certification and testing, additional public evidence, EAC Commissioner’s sworn testimony,
Dominion’s source code, Dominion’s contemporaneous and sworn statements, and Fox’s lack of
evidence in support of its assertion that the “election lie” is false.279 Maricopa County, Arizona,
the only county in Arizona that used Dominion products, conducted a hand count audit that
yielded a “100 percent match.”280 Two independent testing laboratories also confirmed there
was “no evidence of manipulation.”281 A forensic audit by an independent testing laboratory
found no evidence of tampering,282 as did two subsequent recounts.283 Michigan conducted post-
election audits, as well as a comprehensive investigation led by the Michigan Senate Oversight
275
Dominion MSJ at 46.
276
Dominion MSJ, Ex. 146, Stirewalt 154:10.
277
Dominion MSJ at 48-49.
278
See Dominion MSJ, Ex. 127, Lowell 53:5 – 54:2.
[I]t’s my understanding FNN is planning to introduce evidence at trial that some votes were flipped.
And that knowledge is based solely on discussions with counsel. I have no knowledge of facts
outside of the scope of what I just described to you. . . The statement that Dominion committed
election fraud, we cannot state – Fox News is not going to state definitively whether that statement
is true or false. And we’re not planning to assert that in trial, that is my understanding.
Id.279
Dominion MSJ at 51-62.
280
Dominion MSJ, Exs. 209-210.
281
Dominion MSJ, Exs. 300-301.
282
Dominion MSJ, Ex. 303-A.
283
Dominion MSJ, 303-D; 303-B; 303-E.
39
Committee, all of which found no evidence of systematic fraud.284 All sixty-seven Pennsylvania
counties completed a statutorily mandated statistical sampling audit, and then sixty-three
counties completed a risk-limiting audit, both of which confirmed the accuracy of the election
results.285
Every state that used Dominion products certified them prior to the election.286 CISA
explained the safeguards in place to ensure a fair election, including certification and testing.287
State certification laws require voting systems to go through testing and meet standards of
accuracy before use, and many states require federal testing and/or certification by the EAC, as
well as logic and accuracy testing.288 Because of this, every state that used Dominion machines
certified them prior to the election.289
Dominion points to additional public record evidence to prove that the allegations were
false, including: the CISA Joint Statement on November 12;290 the Experts’ Joint Statement on
November 16;291 the November 17 Maricopa County’s Board of Supervisors Chairman’s public
letter stating the results were completely accurate;292 the December 1 statement from U.S.
Attorney General William Barr;293 the EAC Commissioner’s deposition testimony that there was
“no widespread fraud or malfunction that would change the result of an election;”294 and the
284
Dominion MSJ, Exs. 306-B-306-C.
285
Dominion MSJ, Ex. 100, Boockvar 46:19-49:5; Ex. 354. See also 25 Pa. Stat. § 3031.17.
286
Dominion MSJ, Ex. 183, Poulos Aff.
287
Dominion MSJ, Exs. 556-A-556-B.
288
Dominion MSJ, Ex. 308; Ex. 186, Hovland Decl., Ex. A. See also Ariz. Rev. Stat. § 16-449; Ga. Code §§ 21-2-
374(b), 21-2-379.6(c); Mich. Comp. Law §§ 168.795; 25 Pa. Stat. §§ 3006, 3007, 3011, 3015, 3031.5, 3031.14.
289
See Dominion MSJ, Ex. 183, Poulos Aff. ¶ 8; Ex. 185 at 2.
290
Dominion MSJ, Ex. 190.
291
Dominion MSJ, Ex. 315.
292
Dominion MSJ, Ex. 210.
293
Dominion MSJ, Ex. 316. “[T]o date, we have not seen fraud on a scale that could have effected a different
outcome in the election.”
294
Dominion MSJ, Ex. 186, Hovland Decl. ¶ 5.
40
Committee to Investigate the January 6th Attack on the United States Capitol’s finding that
Dominion did not rig the Election.295
In further support of the falsity prong, Dominion provided its source code to its own
expert, as well as Fox’s expert. Dominion’s expert stated it was unable to detect any mechanism
to switch votes,296 which no Fox expert has contested.297 Dominion also notes that it has denied
the allegations in its STRS emails and its sworn testimony.298 Finally, Dominion states that Fox
has “zero evidence” to prove there is an issue of material fact as to falsity.299
Moving to the “algorithm lie,” Dominion again cites to the state audits, recounts,
certification and testing, other public record evidence, Dominion’s contemporaneous and sworn
statements, and Fox’s lack of evidence to prove that the allegation is false.300 Notably, Fox
witnesses have admitted the “algorithm lie” is false or lacks evidence.301 Although Ms. Powell
stated on Lou Dobbs Tonight that she possessed “evidence of how [Smartmatic and Dominion]
flipped the votes, how it was designed to flip the votes,” Fox admitted that it never received that
proof.302 Fox’s expert was one of the fifty-nine experts in the Experts’ Joint Statement that
“[m]erely citing the existence of technical flaws does not establish that an attack occurred, much
less that it altered an election outcome.”303 Dominion also posits that, to the extent Fox argues
the human error in Antrim County constituted “vote flipping” or that Fox simply made
295
Dominion MSJ, Ex. 317 at 3-8.
296
Dominion MSJ, Ex. 548, Rubin Aff. ¶ 4; Ex. 548-A ¶ 146.
297
Dominion MSJ at 60.
298
Dominion MSJ at 61. See Dominion MSJ, Ex. 138, Poulos 895:5-9.
299
Dominion MSJ at 61-62. See Dominion MSJ, Ex. 127, Lowell 41:22-42:4, 177:13-19 (stating Fox does not
currently have evidence to prove or disprove falsity); Dominion MSJ, Ex. 319, Nos. 192, 197, 209 (failing to deny
falsity of fraud lie and admitting Trump did not win by millions of votes shifted by Dominion software in Requests
for Admission).
300
See Dominion MSJ at 64-72.
301
See Dominion MSJ at 68-73, 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.
302
Dominion MSJ, Ex. 128, Lowell 285:6-13; Ex. 319, RFA No. 222.
303
Dominion MSJ, Ex. 315.
41
statements about the machines having vulnerabilities, Fox’s “algorithm lie” accused Dominion of
a broad, purposeful, and fraudulent algorithm design that lacked substantial truth.304 Dominion
also contends that due to the nature of election administration, where votes are tabulated,
reported, and certified by local jurisdictions, it is impossible to monitor or flip votes.305
As to the “Venezuela lie,” Fox has admitted that allegations of Dominion being owned by
a company founded in Venezuela to rig elections for Hugo Chavez is false.306 Furthermore, this
information is readily available to the public.
To prove that the “kickback lie” is false, Dominion offers deposition testimony of its
Chief Executive Officer and corporate representative, John Poulos, and election officials. Mr.
Poulos testified that Dominion did not pay kickbacks to election officials.307 Election officials
from Pennsylvania, Arizona, and Georgia similarly testified that they did not receive kickbacks
from Dominion.308 No evidence has been offered proving otherwise.
Fox dedicates little to its argument on falsity. It claims that “[t]he question is whether the
press reported the ‘true’ fact that the President made those allegations.”309 However, falsity
refers to the content of the statement, not the act of republishing it.310 Therefore, the question of
falsity is whether the content of the allegations was true, not whether Fox truthfully republished
the allegations.311
304
Dominion MSJ at 70-71.
305
Dominion MSJ at 65.
306
Dominion MSJ, Ex. 319, Nos. 176, 180, 194; Ex. 127, Lowell 67:2-25, 108:14-19. RFA admissions
“conclusively establish” the falsity of the statements. See Super. Ct. Civ. R. 36(b); Merritt v. United Parcel Service,
956 A.2d 1196, 1201 (Del. 2008).
307
Dominion MSJ at 76, Ex. 138, Poulos 895:19-22.
308
Dominion MSJ at 77, Ex. 100, Boockvar 49:23-50:6 (Pennsylvania Secretary of State); Ex. 120, Gates 34:22-
35:4 (Maricopa Board of Supervisors Chairman); Ex. 222, Raffensperger Aff. ¶ 3 (Georgia Secretary of State); Ex.
303, Sterling Aff. ¶ 3 (Georgia Chief Operating Officer of the Secretary of State’s Office).
309
Fox Ans. Br. at 67, n. 15.
310
See Zuckerbrot, 167 N.Y.S.3d at 334; Watson, 439 F.Supp. 3d at161.
311
See id.
42
As discussed above, Dominion has offered proof demonstrating that the allegations were
substantially false. Comparing the allegations at issue to the truth, the truth would have likely
had a different outcome on the average viewer, as the statements at issue were dramatically
different than the truth. In fact, although it cannot be attributed directly to Fox’s statements, it is
noteworthy that some Americans still believe the election was rigged.312
Fox takes a nuanced approach to falsity. Fox would have the Court test whether specific
points stated by the FNN hosts are true. For example, Fox argues that if a FNN host notes that
the next guest is Ms. Powell, that Ms. Powell is an attorney for former President Trump and that
Ms. Powell will be stating the position of the former President, then all the statements are true
and there can be no defamation. As set out above, falsity “refers to the content of an allegedly
defamatory statement, not the act of republishing it.”313 The Statements, discussed herein, relate
to allegations against Dominion and not the roles of parties or what they will be talking about.
While the Court must view the record in the light most favorable to Fox, the record does
not show a genuine issue of material fact as to falsity. Through its extensive proof, Dominion
has met its burden of showing there is no genuine issue of material fact as to falsity. Fox
therefore had the burden to show an issue of material fact existed in turn. Fox failed to meet its
burden. The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear
that none of the Statements relating to Dominion about the 2020 election are true. Therefore,
the Court will grant summary judgment in favor of Dominion on the element of falsity.
312
Mark Murray, Poll: 61% of Republicans Still Believe Biden Didn’t Win Fair and Square in 2020, NBC NEWS
(Sept. 27, 2020, 12:21 PM) https://www nbcnews.com/meet-the-press/meetthepressblog/poll-61-republicans-still-
believe-biden-didnt-win-fair-square-2020-rcna49630.
313
Zuckerbrot, 167 N.Y.S.3d at 334.
43
B. DOMINION IS ENTITLED TO SUMMARY JUDGMENT ON THE ELEMENT OF “OF AND
CONCERNING.”
“For there to be recovery in libel, it must be established that the defamation was ‘of and
concerning the plaintiff.’”314 Dominion asserts that the Statements at issue are “of and
concerning” Dominion,315 which Fox does not contest. Because each of the Statements, at some
point, refers to Dominion by name, there is no genuine issue of material fact as to whether the
statements are “of and concerning” Dominion. As such, the Court will grant summary judgment
for Dominion as to the element of “of and concerning.”
C. DOMINION IS ENTITLED TO SUMMARY JUDGMENT ON THE ELEMENT OF PUBLICATION AS
TO FNN.
The next element of defamation is publication of the challenged statements without
privilege or authorization to a third party.316 Communication of the challenged statement to a
third party constitutes publication,317 even if that third party is just one person.318 “[E]ach person
who repeats the defamatory statement is responsible for the resulting damages.”319 To ascertain
who is responsible for the publication of a statement, the Court examines who participated in the
creation or the publication of the challenged statements, because “all who take part in the
procurement, composition and publication of a libel are responsible in law and equally so.”320
314
Chicherchia v. Cleary, 207 A.D.2d 855 (N.Y. App. Div., 2nd Dept. 1994) (citing Gross v. Cantor, 270 N.Y. 93,
96 (N.Y. 1936)). See also Palin v. New York Times Co., 940 F.3d 804, 816 (2d Cir. 2019) (holding that plaintiff has
“more than sufficient[ly]” made a plausible allegation that the challenged statements are “of and concerning” her
where they reference her by name).
315
Dominion MSJ at 82.
316
Dillion v. City of New York, 261 A.D.2d 34, 38 (N.Y. App. Div., 1st Dept. 1999).
317
Osorio v. Source Enterprises, Inc., 2006 WL 2548425, at *6 (S.D.N.Y. Sept. 5, 2006).
318
Torati v. Hodak, 47 N.Y.S.3d 288, 290 (N.Y. App. Div. 1st Dept. 2017).
319
Geraci v. Probst, 15 N.Y.3d 336, 342 (N.Y. 2010). See also Restatement (Second) of Torts § 581 cmt. g (Am.
Law Inst. 1977) (broadcasting companies are similar to newspapers because they are not solely engaged in the
transmission of messages, therefore by selecting and putting people on air for business purposes, they “cooperate
actively in publication.”).
320
Dominion II at 15 (citing Treppel v. Biovail Corp., 2005 WL 2086339, at *3 (S.D.N.Y. Aug. 30, 2005)).
44
“To find that a defendant ‘directed’ or ‘participated in’ publication requires, at very least,
evidence of some affirmative evidence on the part of the defendant.”321
Dominion argues that FNN clearly published the challenged statements through
broadcasts “over its vast media network, including on its television broadcasts and social media
platforms.”322 Dominion states that seventeen of the statements were aired on Fox News or Fox
Business (which were often then reposted on websites and social media), and the other three
statements were on Lou Dobbs’ Twitter account, which he has admitted is “the show’s handle as
well as [his].”323
Dominion claims that FC is responsible for publication because Lachlan and Rupert
Murdoch participated in the procurement, composition and publication of the statements by
“participat[ing] in the editorial process and/or attend[ing] editorial meetings.”324 Dominion
points to Requests for Admissions responses, which stated that the two “attended at least some of
twice daily meetings” during the relevant time and communicated with Ms. Scott about the
shows at issue during the relevant time.325 Dominion additionally highlights conversations
between FC and FNN executives about the shows as proof that FC took part in publication.
FNN does not directly contest the issue of publication. It addresses publication with
actual malice, stating that Dominion’s proffered evidence fails to prove that those allegedly
responsible played a role in the publication, and therefore cannot be held liable. Because FNN
makes that argument in the scope of actual malice, it will be addressed below.
321
Ertel v. Patriot-News Co., 674 A.2d 1038, 1043 (Pa. 1996).
322
Dominion MSJ at 85.
323
Dominion MSJ, Ex. 111, Dobbs 74:13-18 (“That’s the show’s handle as well as mine.”).
324
Dominion MSJ at 101-02. See also Fox MSJ, Ex. E32, Scott 328:16-21 (“Rupert and Lachlan participated in
editorial meetings. Not every day and not every meeting, but they did generally participate in many of the meetings.
Probably more around this time because it was an active time.”).
325
Dominion MSJ, Ex. 319, Nos. 27, 35, 43, 51.
45
The record is clear. FNN, as a network, broadcasted the Statements. In other words,
FNN published the Statements by broadcasting the Statements to FNN’s viewers. In defamation
claims, “all who take part in the procurement, composition and publication of a libel are
responsible in law and equally so.”326 “To find that a defendant ‘directed’ or ‘participated in’
publication requires, at very least, evidence of some affirmative evidence on the part of the
defendant.”327 FNN is not a passive entity. FNN controls what is broadcast on its various
networks. FNN does this through its employees as agents of FNN. Thus, regardless of who
within FNN is responsible for publication, FNN did in fact publish the statements to its viewers.
FC argues that it did not participate in the publication of the challenged statements. It
states that Dominion has failed to uncover evidence of its role in publication, despite the
voluminous record.328 FC first submits that FNN hosts,329 FC executives,330 and FNN employees
and executives331 have “uniformly testified” that FC did not play any role in the creation or
publication of the challenged statements. FC states this is further supported by interrogatory
326
Dominion II at 15 (citing Treppel v. Biovail Corp., 2005 WL 2086339, at *3 (S.D.N.Y. Aug. 30, 2005)).
327
Ertel, 674 A.2d at 1043.
328
FC Ans. Br. at 18.
329
Id. at 9-10. See Fox MSJ, Ex. E25, Pirro 421:21-422:13 (testifying that she never spoke with anyone at FC about
the content of her shows related to the Election or about Dominion); Ex. E26, Bartiromo 406:7-10 (testifying that
she never spoke with Scott or anyone at FC, including Rupert and Lachlan Murdoch, about Dominion or the
allegations); Ex. E27, Carlson 165:15-166:1 (testifying that he can not recall ever speaking to Lachlan Murdoch
about election fraud allegations); Ex. E29, Dobbs 96:22-23 (testifying that he would not have received direction or
guidance from any of the Murdochs).
330
FC Ans. Br. at 11-13. See Fox MSJ, Ex. E41, Rupert Murdoch 352:24-354:6 (testifying that he never spoke to
Bartiromo, Dobbs, Pirro, Hannity, Carlson, Hegseth, Campos-Duffy, Cain, or Wallace about Dominion and vote
fraud); Ex. E42, Shah 364:20-365:10 (testifying that he never had anything to do with what was put on air regarding
the allegations); Ex. E43, Dinh 360:13-18 (same as Shah); 260:21-24 (testifying that outside of lawsuit, has not
discussed Dominion with Lachlan or Rupert Murdoch).
331
FC Ans. Br. at 13-15. See Fox MSJ, Ex. E32, Scott 328:8-11 (testifying that she does not remember talking to
Rupert or Lachlan Murdoch about Dominion); Ex. E33 Komissaroff 208:10-209:5 (testifying that he does not recall
Rupert or Lachlan Murdoch ever telling him to cover the allegations); Ex. E34, Clark 298:9-300:23 (testifying that
he does not recall talking to Lachlan Murdoch, Rupert Murdoch, or Viet Dinh about Giuliani and Powell’s
appearances on the November 15, 2020 Sunday Morning Futures show and stating he does not know who Raj Shah
is); Ex. E35, Cooper 282:4-23 (testifying that nobody at FC gave specific instructions on who to book or what topics
to cover, and that she did not converse with Rupert or Lachlan Murdoch about what to cover); Ex. E36, Schreier
252:20-253:1 (testifying that neither Rupert or Lachlan Murdoch communicated to him about giving airtime to
Giuliani or Powell).
46
responses.332 FC also points out that Dominion did not ask FC executives whether they
discussed the topics with the hosts.333
FC downplays the Murdochs’ attendance at some editorial meetings, reasoning that that
alone does not prove they played a role in publication, especially where many employees
testified that they did not discuss the challenged statements with the Murdochs.334 And in
response to Dominion’s argument that FC and FNN executives discussed the shows with one
another, FC asserts that that is insufficient to prove FC engaged in the publication of the shows,
especially because FNN executives were not bound to FC’s feedback.335 Finally, to the extent
that Dominion alleges FC is responsible for the publication because it could have stopped the
broadcasts, FC says that under Ertel v. Patriot-News Co., failing to hinder publication is not
enough.336
Dominion contends that Rupert Murdoch and Lachlan Murdoch played a direct role in
FNN publishing the Statements. Dominion argues that not only did Rupert Murdoch and
Lachlan Murdoch “weigh in” on the “specific direction on both the tone and narrative of Fox’s
news coverage” during the relevant timeframe, both FC executives were fundamentally involved
in the day-to-day operations of FNN “via phone calls and emails with ‘suggestions’ on hosts,
narratives, topics, and guests – including on issues related to the 2020 election; how to cover the
conspiracy claims; how to treat Trump; the hosts of the accused broadcasts; and guests like Rudy
332
FC Ans. Br. at 15. See Fox MSJ, Ex. K1, Nos. 1-3, 7, 9, 15, 29, 31, 33, 35, 37, 39, 45, 47. FC also cites FNN’s
responses to interrogatories, however the evidence cited does not speak to that claim.
333
FC Ans. Br. at 18.
334
Id. at 21-22. FC additionally states that no witness can even specifically recall whether the Murdochs were
present when Dominion was discussed. See Fox MSJ, Ex. E45, Schreier 56:23-57:16; Ex. E46, Berry 109:8-111:18;
Ex. E47, Scott 328:22-329:20 (D.I. 1035).
335
FC Ans. Br. at 24-27. See Fox MSJ, Ex. E49, L. Murdoch 78:21-79:6 (testifying that he “would hope [Scott]
would consider [the suggestion]. She doesn’t have to put it up. She’s the responsible executive.”); Ex. E32, Scott
35:19:-36:5 (“Rupert and Lachlan never tell me to do anything. . . they make suggestions, they don’t tell me what to
do.)
336
FC Ans. Br. at 27-28. See Ertel, 674 A.2d at 1043.
47
Giuliani.”337 Dominion also points to Rupert Murdoch’s testimony to show that he had the power
to dictate who went on FNN shows and who didn’t:
Q. And you could have said to Suzanne Scott or to the hosts, “Stop putting Rudy
Giuliani on the air”?
A. I could have. But I didn’t.338
The Court finds there are genuine issues as to material facts on whether FC “published”
the Statements. FC offers enough support for its argument that FC did not directly publish or
otherwise engage in the publication of the Statements. Dominion relies on facts relating to the
Murdochs involvement with FNN and its broadcasts. Because reasonable jurors could differ on
whether FC published the Statements, there is a genuine issue of material fact. Therefore, the
Court will deny summary judgment on the issue of publication as it relates to FC.
The Court finds that there is no genuine issue of material fact and Dominion is entitled to
judgment as a matter of law as to whether FNN published the Statements. Accordingly, as to
FNN, the Court will grant summary judgment to Dominion on the issue of publication.
337
Dominion Opp. at 10-11. Suzanne Scott, CEO of FNN, testified that both Rupert Murdoch and Lachlan Murdoch
called her “about once a day” and they also attended the daily editorial meetings at FNN. Ex. 143, Scott 165:23-
166:5. Dominion alleges that at times, Rupert Murdoch would essentially direct the narrative and tone of FNN
shows to be aired, noting that on November 6, 2020, Rupert Murdoch emailed Ms. Scott discussing what FNN hosts
should say regarding the false narrative that President Trump had actually won the election, stating, “Everything
seems to be moving to Biden and If Trump becomes a sore loser we should watch Sean [Hannity] especially and
others don’t sound the same. Not there yet but a danger.” Ex. 151. Suzanne Scott responded, “Agree to all” and
forwarded the email to Meade Cooper, who testified that “I would interpret that to mean that if former President
Trump clearly lost and isn’t accepting the results of the election, that we should make sure that Sean does not go
down that same path.” Ex. 752, 747, Ex. 108, Cooper 186:9-14. Lachlan Murdoch testified that he works with FNN
through Ms. Scott and weighed in on the “specific direction on both the tone and narrative of Fox’s news coverage.
Dominion Opp. at 10, Ex. 130, L. Murdoch 261:22 – 23. On November 14, 2020, Lachlan Murdoch told Ms. Scott
during FNN’s coverage of a Trump rally that Lachlan Murdoch was watching, “News guys have to be careful how
they cover this rally. So far some of the side comments are slightly anti and they shouldn’t be. The narrative should
be this is a huge celebration of the president” to which Ms. Scott responded, “Yes thanks.” Dominion Opp. at 26,
Ex. 627, Ex. 130, L. Murdoch 116:4-119:11. Lachlan Murdoch also criticized an FNN reporter’s live coverage of
the event as being “[s]mug and obnoxious,” to which Ms. Scott replied that she was “calling now” to the reporter’s
producer to change the tone of the reporter’s coverage. Dominion Opp. at 26, Ex. 627, Ex. 130, L. Murdoch 116:4-
119:11.
338
Id. at 30, Ex. 600, R. Murdoch 317:2-6.
48
D. THE COURT WILL NOT GRANT SUMMARY JUDGMENT ON THE ISSUE OF ACTUAL MALICE .
“Actual malice” means that a defendant published false information about a plaintiff
“with knowledge that it was false or with reckless disregard of whether it was false or not.”339
To satisfy the reckless disregard standard, a plaintiff must establish that a defendant “entertained
serious doubts as to the truth of [the] publication” or had a “high degree of awareness of [its]
probable falsity.”340
Actual malice can be proven “through the defendant’s own actions or statements.”341 But
actual malice can also be determined through the subjective determination of whether the
defendant entertained serious doubts as to the truth of the statement, which can be proven by
inference.342 A speaker cannot “purposefully avoid[]” the truth and then claim ignorance.343 But
the failure to investigate a statement’s truth, standing alone, is not evidence of actual malice,
“even if a prudent person would have investigated before publishing [it].”344 If the plaintiff
offers “some direct evidence” that the statement “was probably false,” the Court can infer that
the defendant “inten[ded] to avoid the truth.”345
Circumstantial evidence is probative when determining whether actual malice exists.
Circumstantial evidence may take many forms, including: (i) obvious reason to doubt the
veracity of the informant;346 (ii) a basis wholly on an unverified, anonymous source;347 (iii) such
339
Sweeney v. Prisoners' Legal Servs. of New York, Inc., 84 N.Y.2d 786, 792 (N.Y. 1995) (quoting Sullivan, 376
U.S. at 280).
340
Id. (quoting Harte–Hanks Communications v. Connaughton, 491 U.S. 657, 667 (1989)).
341
Celle v. Filipino Rep. Enterprises Inc., 209 F.3d 163, 183 (2d Cir. 2000).
342
Solano v. Playgirl, 292 F.3d 1078, 1085-86 (9th Cir. 2002) (holding that a jury could conclude the editors
knowingly or recklessly published a misleading cover where someone in the editorial process raised concerns, which
the editors were aware of).
343
Sweeney., 84 N.Y.2d at 787.
344
Id.
345
Id.
346
St. Amant v. Thompson, 390 U.S. 727, 732 (1968).
347
Id.49
an inherent improbability “that only a reckless man would have put them in circulation;”348 (iv)
financial motive;349 (v) a departure from journalistic standards;350 (vi) a preconceived false
narrative;351 and (vii) a refusal to retract the statement and continuing to repeat statements that
have been proven false.352 These factors are not conclusive. A plaintiff may prove actual malice
through an accumulation of such circumstantial evidence.353
Moreover, a plaintiff cannot show actual malice in the abstract, actual malice must be
“brought home to the persons . . . having responsibility for the [allegedly defamatory]
publication.”354 In other words, “[w]hen there are multiple actors involved in an organizational
defendant’s publication of a defamatory statement, the plaintiff must identify the individual
responsible for publication of a statement, and it is that individual the plaintiff must prove acted
with actual malice.”355 Still, proof of actual malice “calls a defendant’s state of mind into
question and does not readily lend itself to summary disposition.”356
1. Dominion’s Argument
a. Dominion contends that falsity was widely known within Fox.
Dominion contends that “this case is the rare defamation case with extensive direct
evidence of actual malice.”357 Dominion supports this by first arguing that the public record and
knowledge within FNN and FC put employees throughout Fox on notice that the allegations
348
Id.349
Harte-Hanks Commc’ns, Inc., 491 U.S. at 689, n.36 (footnote discussing the circumstantial facts adduced at
trial).
350
Id.351
Palin, 940 F.3d at 813.
352
Nunes v. Lizza, 12 F.4th 890, 900-01 (8th Cir. 2021).
353
Celle, 209 F.3d at 183.
354
Sullivan, 376 U.S. at 287. See also Solano, 292 F.3d at 1086 (holding that a jury could conclude the editors
knowingly or recklessly published a misleading cover where someone in the editorial process raised concerns, which
the editors were aware of).
355
Dongguk Univ. v. Yale Univ., 734 F.3d 113, 123 (2d Cir. 2013)
356
Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9 (1979) (internal citations omitted).
357
Dominion MSJ at 90.
50
were false.358 As discussed above, on November 4, 2020, NASED/NASS Joint Statement was
issued, on November 12, 2020, the CISA Joint Statement was issued, and on November 16, the
Experts’ Joint Statement was issued.
Election officials similarly assured the public that the Election was not rigged. Mr.
Lowell testified that there was a “general awareness” of the CISA Statement, which was
provided in Dominion’s STRS emails.359 Even Ms. Petterson asked, “[d]oes anyone do a
fucking simple google search or read emails?”360
Dominion asserts that deposition testimony further illustrates that Fox knew the
allegations were false.361 Dominion points out that Fox witnesses have declined to acknowledge
the allegations as true, and in some cases even testified they did not believe the allegations.362
Mr. Stirewalt testified that he not believe the allegations, that “no reasonable person” would have
believed them, and confirmed that this was a widely held belief among the news people he talked
with.363 Additionally, the Brainroom addressed many of the allegations and determined the
allegations to be untrue.
358
Dominion MSJ at 92-95.
359
Dominion MSJ, Ex. 128, Lowell 413:6-24, 420:5-13; Ex. 331; Ex. 339.
360
Dominion MSJ, Ex. 356 at FNN022_03852657.
361
Dominion MSJ at 96-100.
362
Dominion MSJ at 96, n.12. See Dominion MSJ, Ex.102, Briganti 27:9-28:21 (never believed the allegations);
Ex. 111, Dobbs 22:17-22, 38:11-16 (Powell never substantiated her claims and has never seen proof showing
Election was rigged); Ex. 106, Clark 215:11-231:4 (does not believe allegations and as of November 7, 2020
believed Biden won); Ex. 108, Cooper, 127:18-140:14 (does not believe allegations); Ex. 116, Field 134:6-135:25
(does not believe allegations); Ex. 117, Firth 38:16-43:7 (never believed Dominion was engaged in massive and
coordinated effort to steal the Election); Ex. 122, Hannity 322:15-25 (“I did not believe it for one second, and I tried
to listen as time went on. . . I waited for proof. I got my Sidney answer November 30th.”); Ex. 124, Hooper 52:14-
19, 54:23-55:3, 59:17-22 (at time was unsure, does not believe allegations now); Ex. 126, Komissaroff 38:2-19,
38:23-40:1 (never saw evidence and does not believe them); Ex.130, L. Murdoch 249:4-7; 269:15-20; 321:16-
323:22 (does not believe allegations); Ex. 129, Mitchell 256:10-259:11, 386:6-387:19, 388:8-12, 391:2- 392:14
(never found allegations credible); Ex. 133, Petterson 55:20-72:17 (does not believe allegations but found them
serious at the time); Ex. 140, Sammon 55:6-18, 56:16-18 (never believed allegations); Ex. 143, Scott 306:24-310:20
(never believed allegations); Ex. 146, Stirewalt 153:24-157:11 (does not believe allegations, states that it was
“widely known” and “no reasonable person would believe”); Ex. 148, Wells 70:18-25 (never saw evidence and does
not believe allegations). Dominion included other deposition testimony, however it does not argue the omitted
individuals are responsible for the publication, hence the omission here.
363
Dominion MSJ at 100. See Dominion MSJ, Ex. 146, Stirewalt 136:2-6, 198:4-25.
51
b. Dominion provides evidence that purportedly shows the responsibility of Fox
executives.
In addition to the general knowledge of falsity, Dominion claims that specific evidence
shows that each of the following Fox executives expressed disbelief in the allegations, yet
engaged in the publication process of the broadcasts – making them each responsible: Ms. Scott,
Mr. Wallace, Mr. Lowell, Ms. Cooper, Ms. Petterson, Mr. Clark, Mr. Sammon, Mr. Komissaroff,
Ms. Rosenberg, Mr. Mitchell, Mr. Schreier, and the Murdochs.364 Dominion claims that these
executives are responsible because, according to Request for Admission responses, they
participated in the editorial process and/or attended editorial meetings.365 Furthermore,
Dominion maintains the decision to rebroadcast shows is controlled by the executives, and in this
case all shows were rebroadcast.366
As to FC, Dominion highlights that Rupert Murdoch was in “constant communication”
with Scott and closely involved in various aspects of FNN.367 Dominion argues that Lachlan
Murdoch had similar control.368 Mr. Dinh was consulted by shows when there were “legal
concerns,”369 and ultimately Ms. Powell and Mr. Giuliani were both banned for that exact
reason.370 Fox asserted privilege when Mr. Dinh was asked about his knowledge and
authority.371
364
Dominion MSJ at 104-116.
365
Id. at 102. See Dominion MSJ, Ex. 372; Ex. 127, Lowell 196:11-201:3, 216:10-16. The Court discussed the
various roles and editorial aspects of each of the executive in Section II. Moreover, the Court noted at what times
the executives were notified that the Dominion claims were false.
366
Dominion MSJ Reply Br. at 53.
367
Id. at 45.
368
Id. at 46.
369
Dominion MSJ, Ex. 601, Dinh 109:8-16.
370
Dominion MSJ, Ex. 379 at FNN047_04367516.
371
Dominion MSJ Reply Br. at 47.
52
c. Dominion maintains that specific evidence shows the responsibility of FNN
hosts, producers, and executives for each broadcast.
Dominion alleges that Ms. Scott, Mr. Wallace, Ms. Petterson, Mr. Schreier, Mr. Clark,
Ms. Bartiromo, and Ms. Grossberg are responsible for the Statements made on Sunday Morning
Futures.372 For instance, Dominion notes that Ms. Bartiromo interviewed Ms. Powell the day
prior to the November 8, 2020 broadcast.373 Similarly, Ms. Grossberg provided Ms. Bartiromo
with a “one-sheet” outline of what Ms. Powell planned to cover.374 Dominion highlights the
only email Ms. Powell sent Ms. Bartiromo prior to the show: an email from an anonymous
author who stated Dominion machines flip votes.375 The author claimed she has visions and was
“internally decapitated,” yet neither Ms. Bartiromo nor Ms. Grossberg pressed the matter.376
Dominion emphasizes that by November 12, 2020, Ms. Bartiromo and Ms. Grossberg were also
receiving STRS emails.377
Dominion contends that Ms. Scott, Mr. Wallace, Ms. Petterson, Mr. Schreier, Mr. Dobbs,
Field, Mr. Hooper, and Ms. Fawcett are responsible for the challenged statements made on Lou
Dobbs Tonight.378 Notably, Mr. Schreier believed the allegations were false at the time of
airing.379 Dominion submits evidence showing that Mr. Dobbs was aware of the CISA
Statement, that producers discussed the CISA Statement, and that Mr. Cooper had emailed
himself articles debunking the claims that Mr. Dobbs went on to disseminate that day and the
following.380 Dominion points out that on November 13, 2020, Mr. Schreier received the STRS
372
Dominion MSJ at 117.
373
Id. at 118. See Dominion MSJ, Ex. 207.
374
Dominion MSJ at 118. See Dominion MSJ, Ex. 423.
375
Dominion MSJ, Ex. 154.
376
Id.
377
Dominion MSJ at 122.
378
Id. at 123.
379
Id. at 124.
380
Id. at 125.
53
email,381 and on November 16, 2020, producers exchanged several emails debunking the
claims.382 Mr. Fawcett said Ms. Powell was “doing lsd and cocaine and heroin and shrooms.”383
Several more instances of producers doubting the claims abound.384
Dominion contends that Ms. Scott, Mr. Wallace, Ms. Cooper, Mr. Clark, Ms. Pirro, Mr.
Andrews, and Ms. Voit are responsible for the challenged statements made on Justice with Judge
Jeanine.385 On November 13, 2020, a day before the first broadcast at issue, Mr. Andrews
forwarded Ms. Pirro an STRS email, stating Dominion’s denials would need to be included, and
afterwards forwarded the email exchange to Mr. Clark calling Ms. Pirro a “reckless maniac.”386
On the ensuing broadcast, Ms. Pirro flashed Dominion’s general denial on air for fifteen
seconds.387 At least two of Ms. Pirro’s openings were also sent to the Brainroom and returned
with edits.388
Dominion argues that Ms. Scott, Mr. Wallace, Ms. Petterson, Gavin Hadden (VP of
Morning Programming), and three hosts: Will Cain, Pete Huegseth, and Rachel Campos-Duffy,
are responsible for the challenged statements made on the Fox and Friends broadcast.389
Dominion contends that Ms. Scott, Mr. Wallace, Mr. Cooper, Mr. Mitchell, Mr. Berry,
Mr. Hannity, Mr. Fazio, and Mr. Samuel are responsible for the challenged statements made on
Hannity.390 Despite never believing Ms. Powell’s claim, Mr. Hannity invited Ms. Powell on
air.391 Similarly, Dominion states, Mr. Hannity’s staff knew the allegations were false, such as
381
Id. at 126.
382
Id. at 127-28. See Dominion MSJ, Ex. 439; Ex. 440; Ex. 441.
383
Dominion MSJ, Ex. 442.
384
See Dominion MSJ at 128-134.
385
Id. at 135.
386
Id. at 136. See Dominion MSJ, Ex. 457.
387
Id. at 137.
388
Id. at 136-37.
389
Id. at 139.
390
Id. at 141.
391
Id. at 142.
54
when Mr. Fazio called Mr. Giuliani ’s press conference on November 19, 2020, “comic book
stuff.”392
Dominion lastly claims that Ms. Scott, Mr. Wallace, Ms. Cooper, Mr. Mitchell, Mr.
Carlson, Mr. Wells, Mr. Pfeiffer, Mr. McCaskill, and Mr. Yaron are responsible for the
challenged statements made on Tucker Carlson Tonight.393 Despite Field stating “management”
told the Lou Dobbs Tonight team that they could not host Mike Lindell, Mr. Carlson hosted him
the same night.394 Mr. Carlson testified that Mr. Lindell was coming on to discuss his Twitter
suspension and Mr. Carlson did not know he would stray from that topic,395 however the pre-
show notes mention Mr. Lindell raising “new evidence” on voting machines.396 Dominion
stresses that Mr. Carlson and Mr. Pfeiffer acknowledged the allegations were unsupported by
evidence multiple times far before hosting Mr. Lindell.397 According to Dominion, the morning
of the broadcast at issue, Ms. Earney raised concerns about Mr. Lindell, but those concerns
purportedly fell on deaf ears – Mr. Lindell was hosted, spread the allegations, and Mr. Carlson
failed to push back.398
d. Additional Circumstantial Evidence
Dominion supplements its actual malice argument with circumstantial evidence, which it
says indicates an inference of actual malice. First, Dominion argues that the allegations were
inherently improbable, and the sources relied on were unreliable.399 Dominion spends about five
392
Id. at 143. See Dominion MSJ, Ex. 387 at FNN055_04454599.
393
Dominion MSJ at 144.
394
Id. See Dominion MSJ, Ex. 499 at FNN062_04471969.
395
FNN MSJ, Ex. E7 185:21-24, 320:14-321:9.
396
Dominion MSJ, Ex. 510 (pre-interview email noting that Lindell believed “new evidence came up on the voting
machines” and was suspended on Twitter after retweeting election fraud misinformation).
397
Dominion MSJ at 145. See Dominion MSJ, Ex. 169; Ex. 432; Exs. 500-501; Ex. 150; Ex. 503; Ex. 240; Ex. 505;
Ex. 386; Ex. 166.
398
Dominion MSJ at 146-48.
399
Id. at 148-152.
55
pages quoting various Fox employees who questioned the veracity of the statements and the
reliability of their sources.400 No employees delved into the reliability of any of the supposed
evidence, such as the email Ms. Powell forwarded or the redacted affidavits, except for the
Brainroom calling Ms. Bartiromo’s evidence unreliable.
Second, Dominion contends that Fox had a financial motive, demonstrated by Fox’s
concerns about ratings, viewership downturn and growing competition with Newsmax.401 Ms.
Grossberg told Ms. Bartiromo that the “audience doesn’t want to hear about a peaceful
transition.”402 Mr. Dobbs called any day with Ms. Powell or Mr. Giuliani “guaranteed gold.”403
Mr. Hannity told his team that “[r]especting this audience whether we agree or not is critical.”404
Mr. Samuel responded and said that “our best minutes from last week were on the voting
irregularities.”405
Third, Dominion states that FNN departed from journalistic standards by continuing to
broadcast the allegations despite the lack of evidence.406 Dominion contends that several FNN
employees admitted in their depositions that journalists should not relay misinformation to
viewers.407
Fourth, Dominion argues that FNN knew of the preconceived narrative that the Election
was stolen and was preparing for it before ballots were cast.408 As an example, Dominion relies
on an instance, on September 27, 2020, when a FNN employee asked Ms. Pirro if she would
400
Id.
401
Id. at 153-157.
402
Dominion MSJ, Ex. 514.
403
Dominion MSJ, Ex. 164.
404
Dominion MSJ, Ex. 518.
405
Id.
406
Dominion MSJ at 158-59.
407
Dominion MSJ, Ex. 97, Baier 22:6-20, 26:10-14; Ex. 122, Hannity 212:2-6, 32:20-22, 62:3-11; Ex. 601, Dinh
316:5-25.
408
Dominion MSJ at 159-60.
56
accept the election results and Ms. Pirro responded: “I will accept the results but I reserve my
right to challenge the massive fraud I am justifiably anticipating.”409 Ms. Bartiromo texted Mr.
Schreier saying she was worried about cheating on October 31.410 On November 10, Steve
Bannon texted Ms. Bartiromo, writing “[w]e either close on Trumps victory or del[e]gitimize
Biden . . . THE PLAN.”411
Fifth, Dominion contends that FNN’s refusal to retract any statements creates an
inference of actual malice.412
2. FNN’s Argument
a. Dominion Failed to Prove Actual Malice in the Statements “Brought Home”
to Fox
FNN states that Dominion failed to meet its burden that actual malice was “brought
home” to the allegedly responsible publishers. FNN notes that the “actual malice” standard and
the “clear and convincing” burden of proof are difficult to overcome and submits that Dominion
has failed to do so here.413
FNN claims that Dominion must prove that “each of the 115 statements . . . was made or
published with actual malice” and that the alleged actual malice was “brought home” to the
individuals responsible for publication.414 FNN accuses Dominion of “cherry-pick[ing]”
statements and attempting to attribute an overall, abstract knowledge of falsity to FNN
generally,415 rather than demonstrate actual malice of the individuals allegedly responsible in
409
Dominion MSJ, Ex. 547.
410
Dominion MSJ, Ex. 550.
411
Dominion MSJ, Ex. 157.
412
Dominion MSJ at 161.
413
FNN Ans. Br. at 81-82.
414
Id. at 78. (emphasis in original).
415
Id. at 79.
57
conjunction with each of the 115 statements.416 FNN relies on Greenberg v. Spritzer, in which
the court chose to “analyze the statements by category, but within the context in which each
statement was made.”417
FNN argues that the person responsible for a challenged statement is the author or
speaker of the statement.418 FNN first cites to Palin v. New York Times Co.419 There, the court
stated: “[T]he critical question is the state of mind of those responsible for the publication.
Because the Times identified Bennett as the author of the editorial, it was his state of mind that
was relevant to the actual malice determination.”420 The Court does not read Palin as cited by
FNN. As Dominion notes,421 Palin does not stand for only holding the speaker responsible for a
challenged statement; it instead reviewed several individuals in the chain and determined that
they did not recognize any error.422
FNN then points to Page v. Oath Inc.,423 Ertel v. Patriot-News Co.,424 Mimms v. CVS
Pharmacy,425 and Flotech, Inc. v. E.I. Du Pont de Nemours & Co.426 to argue that Dominion
failed to bridge the gap between parties responsible for publication and the actual malice
416
Id. at 84.
417
155 A.D.3d 27, 47 (N.Y. App. Div., 2nd Dept. 2017). The court in Greenberg still analyzed the statements by
category, therefore it appears that Fox’s reliance on this case is somewhat misplaced as Dominion categorizes the
allegations into four kinds and addresses them in a broadcast-specific context.
418
FNN Ans. Br. at 84.
419
Id. (citing Palin, 940 F.3d at 810).
420
Palin, 940 F.3d at 810.
421
Dominion MSJ Reply Br. at 37
422
Palin, 940 F.3d at 810.
423
270 A.3d 833, 850 (Del. 2022) (explaining that the actual malice inquiry examines the mindset of those
responsible for the statements, or “those involved in the drafting,” which in this case consisted of the authors).
424
674 A.2d 1038, 1043-44 (Pa. 1996) (holding that for a third-party defendant to be responsible for “procur[ing]
publication, the plaintiff must establish the third-party defendant directed or participated in the publication of the
defamatory publication of another;” under this rule, a private investigator who discovered information and sent a
report of it to his clients, who then sent it to a newspaper without notice to the private investigator, did not procure
publication).
425
889 F.3d 865, 868 (7th Cir. 2018) (stating knowledge of falsity cannot be imputed from principal to agent).
426
814 F.2d 775, 781 (1st Cir. 1987) (finding the “two…employees with the primary roles in issuing the press
release,” a marketing manager and a project specialist/program coordinator, to be the publishers for which actual
malice must be analyzed).
58
inquiry.427 First, these authorities do not apply New York law. And even so, the Court notes
these cases do not establish a rule that the only relevant inquiry is to the actual malice of the
speaker and not the employees responsible for publication.
b. FNN contends the record lacks proof of actual malice.
FNN asserts that FNN hosts believed the allegations, that evidence shows there were
good-faith reasons to not discredit the allegations, and that FNN hosts also pushed back on
guests and reported Dominion’s denials. FNN stresses that “there is a critical difference between
not knowing whether something is true and being highly aware that it is probably false,”428 and
here the evidence shows that hosts429 and producers430 believed the allegations, or at the least did
not flatly disbelieve them. FNN notes that, even now, Ms. Bartiromo testified that she “cannot
sit here and say [she knows] what happened in the election even to this day.”431 Similarly, Mr.
Dobbs still believes the election was stolen.432
FNN argues that a publisher’s reliance on elected officials, as well as official sources,
shows an absence of actual malice.433 FNN also contends that where a source swears to their
answers and prepares to substantiate the charges, the scale weighs against actual malice.434 Ms.
427
FNN Ans. Br. at 85-86.
428
Liberman v. Gelstein, 605 N.E.2d 344, 350 (N.Y. 1992).
429
FNN MSJ, Ex. I2, Bartiromo Text (Nov. 20, 2020) (“This was fraud. No one can tell me differently.”); FNN
MSJ, Ex. E6, Pirro 297:22-24, 97:23-25, 99:17-21, 103:13-15; FNN MSJ, Ex. E5, Dobbs 22:4-16 (testifying that he
did believe, and still believes, that the election was stolen); FNN MSJ, Ex. E7, Carlson 44:16—20, 45:7-9, 110:7-9;
Dominion MSJ, Ex. 103, Cain 136:13-137:4; Dominion MSJ, Ex. 104, Campos-Duffy 167:24-168:10; Dominion
MSJ, Ex. 123, Hegseth 141:24-142:13, 131:4-10.
430
Dominion MSJ, Ex. 121, Grossberg 259:7-11, 261:22-263:4; Dominion MSJ, Ex. 116, Field 154:10-157:14;
Dominion MSJ, Ex. 116, Field 154:10-157:14; Dominion MSJ, Ex. 124, Hooper 52:14-55:3; Dominion MSJ, Ex.
114, Fawcett 92:4-93:20; Dominion MSJ, Ex. 96, Andrews 29:18-22, 31:8-19; Dominion MSJ, Ex. 115, Fazio
46:20-51:13; Dominion MSJ, Ex. 141, Samuel 14:12-15:3; Dominion MSJ, Ex. 148, Wells 67:17-68:4, 72:1-5;
Dominion MSJ, Ex. 134, Pfeiffer 39:24-40:4.
431
Fox MSJ, Ex. E4, Bartiromo 283:1-5.
432
FNN MSJ, Ex. E5, Dobbs 22:4-16 (testifying that he did believe, and still believes, that the election was stolen).
433
FNN MSJ at 91. See, e.g., Freeze Right Refrig. & A.C. Servs. V. City of New York, 101 A.D.2d 175, 184-85
(N.Y. App. Div. 1st Dept. 1984).
434
See St. Amant, 390 U.S. at 733.
59
Bartiromo and Mr. Dobbs explained that they took the allegations seriously because they were
brought by a president and his lawyers, who were respected attorneys.435 Ms. Pirro and Mr.
Carlson testified that they took the election lawsuits seriously because they were made under the
threat of Civil Rule 11 sanctions.436
Furthermore, FNN claims that FNN hosts did push back on the allegations. For example,
FNN provides that not only did Mr. Carlson testify that he did not know Mr. Lindell was going
to bring up Dominion,437 but also said “they’re not making conspiracy theories go away by doing
that” in response to Mr. Lindell’s statement that people do not want to discuss voting machine
fraud.438
According to FNN, the allegations were not far-fetched because in the past, experts and
politicians alike have raised concerns about electronic voting systems’ vulnerabilities.439
FNN reasserts the argument that Dominion did not sufficiently “bring home” actual
malice to responsible parties in regards to FNN executives.440 Fox relies on Ertel, which states a
defamation plaintiff must show that a third-party individual “affirmatively act[ed] to direct or
participate in the publication” and that “mere failure to hinder its publication” is not enough.”441
FNN cautions that a slippery slope could develop that would “permit inquiry into the state of
mind of every single editor, producer, and executive up the chain.”442
435
FNN MSJ, Ex. E4, Bartiromo 379:14-22; Fox MSJ, Ex. E5, Dobbs 21:4-8.
436
FNN MSJ, Ex. E6, Pirro 352:17-23; FNN MSJ, Ex. E7, Carlson 330:19-331:5.
437
FNN MSJ, Ex. E7 185:21-24, 320:14-321:9. See Jones v. Taibbi, 508 F.Supp. 1069, 1074 n.12 (D. Mass. 1981)
(“[I]t is one thing to require a newspaper to check the accuracy of an interview. But it may be another matter to hold
a TV newsperson responsible for the spontaneous live utterance of an interviewee.”).
438
FNN MSJ, Ex. A38, Tucker Carlson Tonight 19-20.
439
For instance, Ms. Bartiromo and Mr. Hannity testified that they found the allegations credible where Senator
Klobuchar, Congresswoman Maloney, and Stacey Abrams expressed similar concerns FNN MSJ, Ex. E4, Bartiromo
196:16-197:2, 379:11-18; FNN MSJ, Ex. E8, Hannity 44:1-18, 187:7-19; 317:12-16.
440
FNN Ans. Br. at 117-32.
441
Ertel, 674 A.2d at 1043.
442
FNN Ans. Br. at 120.
60
FNN contends that Dominion has produced no evidence of executives exercising direct
control over the challenged statements.443 In support of this, FNN references instances
throughout the record of executives disclaiming control over the scripts.444 For example, Ms.
Cooper said she rarely reviewed scripts.445 Ms. Bartiromo said Mr. Clark could not tell her she
could not book people, because it was her show.446 Mr. Dobbs said he did not receive
instructions or guidance about covering the allegations, directly or indirectly, from executives.447
FNN states that Dominion incorrectly named Mr. Schreier as a responsible individual for Sunday
Morning Futures, but that Mr. Schreier does not oversee that show.448 In addition to the absence
of participation in the publication, FNN says that the executives did not disbelieve the
allegations.449
FNN asserts that Dominion’s circumstantial evidence is insufficient to show actual
malice. FNN says that it had reason to be dubious of Dominion’s outreach because “mere
knowledge of self-serving denials does not prove that someone ‘in fact entertained serious
doubts as to the truth’ of the statement.”450 FNN similarly refers to the state audits as self-
serving.451 FNN counters Dominion’s reasoning that public, objectively verifiable evidence
contradicted the allegations by stating that the CISA Statement lacked verifiable evidence to
properly debunk the claims.452 FNN maintains that FNN hosts, such as Mr. Dobbs and Ms.
Bartiromo, were therefore rightfully skeptical.453 Additionally, FNN claims that FNN employees
443
Id.
444
Id. at 122-133.
445
Dominion MSJ, Ex. 108, Cooper 79:2-4.
446
Dominion MSJ, Ex. 98, Bartiromo 247:16-248:6.
447
Dominion MSJ, Ex. 111, Dobbs 99:16-100:3.
448
FNN Ans. Br. at 128.
449
Id. at 134-37.
450
Id. at 137-38 (quoting St. Amant, 390 U.S. at 731) (emphasis added).
451
Id. at 143-44.
452
Id. at 140.
453
Id. at 141.
61
allegedly conducted their own research countering the statements.454 FNN argues that this alone
is not actionable purposeful avoidance.455 FNN disagrees that the allegations were “inherently
implausible” because the allegations were made by a sitting president and investigated by the
U.S. Department of Justice and the U.S. Department of Homeland Security.456 FNN dismisses
Dominion’s “financial motive” argument, stating that “ratings did not drive revenues.”457
In response to text messages and emails of various FNN employees questioning the
veracity of the claims, FNN has generally the same answer to all: FNN was waiting for the
evidence. Because the election results would be verified in mid-December, FNN employees
believed this was an appropriate length of time to wait and see if that evidence came to light.458
3. FC’s Argument
a. FC Did Not Participate or Have Any Role in the Creation or Publication of
the Challenged Statements
FC notes that Dominion did not include any FC employees when listing who at FC was
supposedly responsible for each of the Statements.459 Dominion did not ask Rupert Murdoch in
his deposition whether he had discussed Dominion with any FNN hosts, and on redirect he
testified that he had not.460 FNN hosts purportedly confirmed this – Mr. Dobbs, Ms. Pirro, and
Ms. Bartiromo all testified that they had not discussed covering Dominion with FC.461 Mr.
454
Id. at 143.
455
Id. at 147-48.
456
Id. at 149-50.
457
Id. at 151. See Dominion MSJ, Ex. 113, Dorrego 31:20-32:9, 237:6-7 (revenue from TV providers make up
majority of the revenue, which is not affected by viewership). See, e.g., Dominion MSJ, Ex. 113, Dorrego 258:23-
259:5, 287:18-289:1, 297:8-298:11, 346:5-12, Ex. 102, Briganti 79:21-80:3, 130:6-7; Ex. 108, Cooper 171:8-13
(ratings and viewership drop after elections).
458
Id. at 145-47.
459
FC Ans. Br. at 17.
460
Fox MSJ, Ex. E41, R. Murdoch 352:24-354:2.
461
FC Ans. Br. at 18-20. See Fox MSJ, Ex. E29, Dobbs 96:22-23, 99:24-100:3; Ex. E25, Pirro 421:21-422:8; Ex.
E26, Bartiromo 259:24-260:16, 406:6-17.
62
Carlson testified that he cannot recall ever speaking with anyone at FC about Dominion, Ms.
Powell, or Mr. Lindell.462
FC asserts that because Dominion has not demonstrated that anyone at FC was
responsible for the challenged statements, Dominion turns to the argument that the Murdochs
occasionally attended the twice daily meetings;463 however, nobody present at the meetings
testified that they spoke with either of the Murdochs about Dominion.464 FC maintains that no
witness recalls either of the Murdochs even being present when Dominion or the statements at
issue were discussed.465 And assuming that that evidence was provided, FC submits that it still
would be insufficient to create responsibility for the publication considering the Murdochs only
gave suggestions.466
Last, FC—citing Ertel—states that to find anyone from FC participated in the
publication, there must be action, not just a failure to hinder publication. FC’s argument mirrors
FNN’s same argument on this point.
b. No Clear and Convincing Evidence of Actual Malice
FC alleges that assuming Dominion could prove FC directed FNN to publish any of the
statements at issue, Dominion’s argument would still fail because there is no clear and
convincing evidence of actual malice.467 FC argues that Dominion cannot connect any of the FC
employees’ statements of disbelief, doubt, or concern to the challenged statements.468 FC
462
Fox MSJ, Ex. E27, Carlson 165:19-166:1.
463
FC Ans. Br. at 21.
464
Id.
465
Id. at 22.
466
Id. at 25-27. See, e.g., Fox MSJ, Ex. E40, L. Murdoch 63:3-8 (“I’m not responsible for the editorial on Fox
News.”)
467
FC Ans. Br. at 28.
468
Id. at 29.
63
mirrors FNN’s argument that the record does not support a financial motive to publish the
Statements.469
4. The Court Will Not Grant Summary Judgment as to Actual Malice.
The Court has taken time to set out the legal and factual arguments of Dominion, FNN
and FC. The Court does this to demonstrate that multiple genuine issues as to material facts and
that no party is entitled to judgment as a matter of law on the element of actual malice. The
parties have generated a record that shows disputed material facts. Although both FNN and FC
suggest the Statements should be examined individually, tracing each to determine whether
someone responsible for the publication acted with actual malice as to the specific allegation of
defamation. Dominion grouped the Statements into four types, proffered evidence explaining
who it believes is responsible for the publication of each broadcast, and supported its claim that
those individuals acted with actual malice with ample evidence. FNN and FC have offered
evidence supporting their claims, contending that implicated individuals did not reach the level
of involvement necessary to constitute responsibility for the publication and that the individuals
did not act with actual malice.
The Court does not weigh the evidence to determine who may have been responsible for
publication and if such people acted with actual malice – these are genuine issues of material fact
and therefore must be determined by a jury. Accordingly, the Court will deny summary
judgment on the issue of actual malice, finding that genuine issues as to material fact exist and
no party is entitled to judgment as a matter of law.
469
Id. at 31.
64
E. THE COURT FINDS THAT THE STATEMENTS CONSTITUTE DEFAMATION PER SE
Under New York law, a statement is defamatory per se if it “tends to expose a person to
public contempt, hatred, ridicule, aversion, or disgrace.”470 “[I]f [a statement] (1) charges the
plaintiff with a serious crime; [or] (2) tends to injure the plaintiff in her or his trade, business or
profession” it is considered defamatory per se.471 Specifically, a statement charging a company
with fraud, deception, or other misconduct in its business is defamatory per se.472 Where a
statement is defamatory per se, a plaintiff need not prove damages to establish liability, as
“injury is presumed.”473 Whether a statement is defamatory per se is a question of law.474
Dominion alleges that each of the four categories of Statements is defamatory per se.
The Statements claimed that Dominion committed election fraud; manipulated vote counts
through its software and algorithms; is owned by a company founded in Venezuela to rig
elections for dictator Hugo Chavez; and paid kickbacks to government officials who used its
machines in the Election. According to Dominion, all these allegations strike at the “basic
integrity” of its business: providing voting systems to state and local governments.475 Dominion
notes that a case involving nearly identical statements in support of its argument held that the
challenged statements were defamatory per se.476
Fox does not argue against Dominion’s assertion that the statements are defamatory per
se.
470
Kasavana, 172 A.D.3d at 1044; Smartmatic v. Fox. Corp., 2023 WL 1525024, at *14 (Del. Super. Feb. 3, 2023).
471
Kasavana, 172 A.D.3d at 1044.
472
Harwood Pharmacal Co. v. Nat’l Broad. Co., 9 N.Y.2s 460, 463 (N.Y. 1961).
473
Celle, 209 F.3d at 179 (2d Cir. 2000); Kasavana, 172 A.D.3d at 1046.
474
Geraci, 15 N.Y.3d at 344.
475
Dominion MSJ at 87 (quoting Ruder & Finn Inc. v. Seaboard Sur. Co., 52 N.Y.2d 663, 670 (N.Y. 1981)).
476
Smartmatic USA Corp. v. Fox Corp, 2022 WL 685407, at *20, 22, 23, 28 (N.Y. Sup. Ct. Mar. 8, 2022), aff’d as
modified by Smartmatic USA Corp. v. Fox Corp., 213 A.D.3d 512 (N.Y. App. Div. 1st Dept. 2023).
65
Because the evidence and analogous case law holds allegations such as the ones made in
this civil proceeding are defamatory per se and Fox has not contended otherwise, the Court
holds, as a matter of law, that Dominion is entitled to summary judgment on the element of
defamation per se.
F. FOX477 IS NOT ENTITLED TO SUMMARY JUDGMENT AS TO DAMAGES.
Under New York law, if a statement is defamatory per se, the injury to the plaintiff is
assumed, and may recover at least nominal damages.478 “The issue of whether a statement is
actionable per se is for the court.”479 A statement can be found defamatory per se “where a
statement impugns the basic integrity or creditworthiness of a business, an action for defamation
lies and injury in conclusively presumed.”480 The Court has already found that the Statements
are defamatory per se. Dominion is entitled to, at the very least, nominal damages if Dominion
carries its burden on the other elements of its defamation claims.
FNN argues that Dominion failed to show: (i) that Dominion actually incurred the losses
as claimed; (ii) that FNN’s actions can be directly attributed to such losses; or (iii) the identities
of the customers that Dominion lost because of the alleged defamatory statements by FNN.
FNN first contends that Dominion is not entitled to recover economic damages, including
lost profits and lost enterprise value, because Dominion’s calculation of the claimed damages is
flawed. FNN pleads that “it is simply unrealistic that a company that was generating as little as
$10.6 million in annual EBITDA before the 2020 election could have skyrocketed to $1 billion
in enterprise value in the few short years that followed.”481 FNN states that even if Dominion
477
FC has adopted FNN’s arguments on damages.
478
Celle, 209 F.3d at 179.
479
Sheindlin v. Brady, 597 F.Supp.3d 607, 626 (S.D.N.Y. 2022) (citing Albert v. Loksen, 239 F.3d 256, 271 (2d Cir.
2001)) (applying New York law).
480
Id. (citing Celle, 209 F.3d at 180).
481
FNN MSJ at 148 (emphasis in original).
66
can prove these “astronomical losses,” Dominion cannot prove that the losses were caused by
FNN’s coverage.482
FNN argues that under New York law, a defamation plaintiff must prove that the
defamatory statements played “a material and substantial part in inducing others not to deal with
the plaintiff, with the result that special damages, in the form of lost dealings, are incurred” and
such losses must be proven with “reasonable certainly and without speculation.”483 Additionally,
New York requires that a plaintiff specifically name the “persons who ceased to be customers, or
who refused to purchase” the plaintiff’s goods or services.484
FNN asserts that the record shows Dominion’s customers were not influenced by any of
the allegations or media reports regarding the Election, and Dominion’s claims are merely
conjecture, far short of the evidentiary bar required under New York law. FNN points to the
record to show that representatives from various customers made no mention of any statements
from FNN when questioned about why they declined to contract with Dominion.485
Furthermore, FNN pleads that instead of showing any lost profits, the record shows that
Dominion’s 2021 revenue after the Election exceeded its own pre-election projections.486
Lastly, FNN claims that Dominion is not entitled to punitive damages as a matter of law,
because under New York law, punitive damages can only be awarded upon showing common-
law malice, requiring proof that the defendant made defamatory statements “out of hatred, ill
482
Id. at 149.
483
Id. (citing Waste Distillation Tech., Inc. v. Blasland & Bouck Eng’rs P.C., 136 A.D.2d 633, 634 (N.Y. App. Div.
1988) and Wolf St. Supermarkets, Inc. v. McPartland, 108 A.D.2d 25, 33 (N.Y. App. Div. 1985)).
484
Id. at 150 (citing Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 75 F.Supp.2d 235, 239-40 (S.D.N.Y.
1999)).
485
FNN MSJ at 151. “Dominion was not awarded the Morris County, New Jersey contract because ‘ES&S’s
machine won on four of five measures and [its] pricing was comparable to Dominion.’” Ex. F3, Dudney Report ¶
56.
486
Id. at 152. Dominion projected 2021 revenues between $51.5 and $89.6 million. Dominion’s revenue in 2021 was
$94.6 million. Dudney Report ¶ 74.
67
will, or spite” against the plaintiff.487 FNN pleads that Dominion cannot, and did not, show that
any individual at FNN harbored “hatred, ill will, or spite” against Dominion when making or
publishing the contested statements.488
Dominion argues that under New York law, when accusations are defamatory per se, the
injury is presumed, and the jury may award presume damages without special proof. Dominion
notes that FNN’s reliance on Wolf St. Supermarkets to argue that Dominion is required to show
pecuniary loss is flawed and cites to Metro. Opera. Ass’n, where the S.D.N.Y. court held that a
corporate defamation plaintiff can “show actual harm to reputation and recover damages based
on types of loss other than specific instances of pecuniary business loss.”489 Dominion maintains
that, under New York law, defamed corporations are entitled to all economic losses that “flow
directly from the injury to reputation caused by the defamation.”490
Dominion also contends that FNN misstated the applicable law on pecuniary damages.
Dominion asserts that the full language of New York law on common-law damages requires that
the defendant made defamatory statements “with deliberate intent to injure or made out of
hatred, ill will, or spite or made with willful, wanton or reckless disregard of another’s rights.”491
The Statements involve allegations that Dominion created an “algorithm” that was
capable of “flipping” votes, which was then installed on their voting machines and systems, and
subsequently used to “steal” the Election from a sitting United States President. Such accusations
directly implicate and damage the “basic integrity” or the “creditworthiness” of Dominion, a
voting technology company which relies on the reputation of the integrity and security of its
487
Id. at 155 (citing Celle, 209 F.3d at 184).
488
Id. at 155.
489
Dominion Opp. at 183.
490
Id. at 185 (citing Robertson v. Doe, 2010 WL 11527317, at *3 (S.D.N.Y. May 11, 2010)).
491
Id. at 189-90 (citing New York Pattern Jury Instructions § 3:30, and Prozeralik v. Capital Cities Commc’ns, Inc.,
626 N.E.2d 34, 42 (N.Y. 1993)).
68
voting machines and software. As such, the Statements are defamatory per se, which in turn
creates a presumption of damages to Dominion, who may recover at least nominal damages.
The analysis ends here. The calculation of damages is a question for the jury. As for
other damage points, FNN questions the amount of damages and how those damages would be
calculated. FNN argued these points strongly in its papers and at the hearing; however, FNN
does not make a sustainable argument that Dominion is not entitled to damages as a matter of
law or fact. In addition, the Court is aware that the parties have experts on damages and
causation. Some, if not all, of these experts will testify at trial. The damage issue is fully joined
and intensely factual. The Court will revisit the damages issue (including punitive damages)
after the evidence has closed and, if necessary, tailor the jury instructions accordingly. The
Court denies summary judgment on damages.
G. FNN AND FC CANNOT AVAIL THEMSELVES OF CERTAIN DEFENSES LIKE THE NEUTRAL
REPORT AND FAIR REPORT PRIVILEGES OR THE PRIVILEGE FOR OPINION.
1. Newsworthiness/Neutral Reportage Privilege Fails to Shield FNN from Liability
The neutral report privilege bars recovery for defamation when the challenged
statements, even if defamatory, are “newsworthy.”492 The sheer making of an allegation may be
newsworthy.493 Edwards, the case that set forth the doctrine, opines that the First Amendment
does not require that the press “suppress newsworthy statements merely because it has serious
doubts regarding their truth.”494 Where a journalist “believes, reasonably and in good faith, that
his report accurately conveys the charges made,” they will be immunized under the neutral report
492
See Edwards v. Nat’l Audobon Soc’y, Inc., 556 F.2d 113, 120 (2d Cir. 1977) (articulating doctrine).
493
Id.494
Id.69
privilege.495 In Cianci v. New Times Pub. Co., the Second Circuit noted that Edwards
“contain[ed] important suggestions that the privilege was limited in scope.”496
This Court observed in Dominion I that the doctrine “seems to run contrary to United
States Supreme Court precedent as it seems to create a nearly unqualified privilege.”497 This
quandary was addressed in Hogan v. Herald Co.498 There, the New York Appellate Division
determined that the neutral report privilege could not be reconciled with binding free speech
precedent, which bases immunity upon the plaintiff, not the subject matter.499 The court held
that the neutral report privilege “does not apply in this department.”500 New York’s highest court
then affirmed.501 Following Hogan, the neutral report privilege has continued to be rejected by
New York’s highest court.502 This Court expressed reservation as to whether the neutral report
privilege was applicable under Hogan.503
FNN still relies upon the neutral report privilege in contending it is entitled to summary
judgment. FNN attempts to reconcile Edwards and Hogan by claiming that Dominion stretched
Hogan’s meaning, but in reality Hogan does not reject the neutral report privilege.504 FNN
argues that under Edwards and subsequent cases, like Page v. Oath and Brian v. Richardson, the
press cannot be held liable for accurately reporting newsworthy allegations made by newsworthy
495
Id. (emphasis added).
496
639 F.2d 54, 68-69 (2d Cir. 1980) (holding that “a jury could well find that the New Times did not simply report
the charges but espoused or concurred in the harm” where defendant did not provide plaintiff’s version of the facts).
497
Dominion I at 41.
498
84 A.D.2d 470, 477-79 (N.Y. App. Div. 4th Dept. 1982); aff’d, 444 N.E.2d 1002 (N.Y. 1982).
499
Id.500
Id.501
Hogan v. Herald Co., 444 N.E.2d 1002 (N.Y. 1982).
502
See Weiner v. Doubleday & Co., Inc., 549 N.E.2d 453, 456 (N.Y. 1989); Huggins v. Moore, 726 N.E.2d 456, 462
(N.Y. 1999).
503
Dominion I at 41-42.
504
FNN Ans. Br. at 55. As proof of this statement, FNN cites to Konikoff v. Prudential Ins. Co. of America, 234
F.3d 92, 105 n.11, 106 (2d Cir. 2000) (“While the New York Court of Appeals rejected the existence of a neutral
reportage privilege for private plaintiffs in Hogan . . .”).
70
figures (however neither case addresses the neutral report privilege doctrine).505 FNN claims
that the key question in determining when the neutral report privilege applies is whether a
reasonable viewer, viewing the statement in the “over-all context in which the assertions were
made,” would understand the statements as mere allegations to be investigated, rather than
facts.506 FNN asserts that similar to those cases, here FNN neutrally reported the allegations.507
FNN theorizes about what limiting the press on reporting newsworthy allegations would
look like, posing, for instance, that if there was no neutral reportage privilege “CNN could face
liability for reporting Governor Andrew Cuomo’s allegations that the women who accused him
of sexual assault were liars, since some CNN editors undoubtedly believed the Governor’s
accusers.”508 FNN goes on to state that if Dominion’s interpretation of the law is correct, it
should be suing all news outlets, because they all reported on this.509 Moreover, FNN argues that
“New York cannot reject protections afforded by the First Amendment as a matter of ‘New York
law.’”510
Dominion, in turn, contends that New York law has rejected the neutral report privilege
because it cannot be squared with free speech precedent, and that there is no federal
constitutional basis for the neutral report privilege.511 From Gertz onward, federal constitutional
law has “maintained the careful – and highly media-protective – balance it first struck in Sullivan
and Curtis Publishing, requiring an inquiry based on the status of the plaintiff, not the content of
the statement.”512 Dominion also states that Fox’s argument is weakened by the fact that
505
FNN Ans. Br. at 44. See Page, 270 A.3d 833 (Del. 2022); Brian, 660 N.E.2d 1126 (N.Y. 1995).
506
FNN Ans. Br. at 49 (quoting Brian, 660 N.E. at 1130-31). See also Croce v. New York Times Co., 930 F.3d 787,
793-95 (6th Cir. 2019); Green v. CBS Inc., 286 F.3d 281, 284 (5th Cir. 2002).
507
FNN Ans. Br. at 63-67.
508
Id. at 45.
509
Id. at 46-47.
510
Id. at 55.
511
Dominion MSJ at 164.
512
Id. at 166.
71
Dominion agreed to an actual malice standard, which is “the greatest amount of protection
available under the law.”513 Dominion stresses that Fox is taking an inferential step when relying
on Page and Brian, because neither case discussed newsworthiness.514 In the alternative,
Dominion argues that if the neutral report privilege applied, FNN could not meet its
requirements because FNN did not provide “disinterested reporting,” but instead espoused and
concurred in the challenged statements.515
Hogan is binding on this Court. Hogan rejects the neutral report privilege and, therefore,
the Court will not apply the privilege here. The Court would not be the first trial court to
determine that it is bound by Hogan. In Fridman v. Buzzfeed, Inc.,516 the Supreme Court of
New York (a trial court) addressed the neutral report privilege and held:
Plaintiffs contend that there is no constitutional neutral report privilege under New
York law and defendants acknowledge that this issue “has yet to be definitely
settled.” Admittedly, there are few cases that consider the concept of ‘neutral
reportage’ under New York law.
In Hogan v. Herald Co. (84 AD2d 470, 446 NYS2d 836 [4th Dept 1982], the
Appellate Division concluded that New York courts do not recognize a neutral
report privilege. The Court of Appeals affirmed the Fourth Department’s decision
without an opinion (see Hogan v. Herald Co., 58 NY2d 630, 458 NYS2d 538(Mem) [1982]). Although defendants argue that “New York courts, while not using
the words ‘neutral report,’ have acted to protect neutral reports on allegations about
public figures by applying other doctrines in defamation law” (NYSCEF Doc. No.
24 at 23), the fact is that defendant failed to cite any binding New York cases that
expressly contradict Hogan. This Court cannot ignore the clear Court of Appeals
precedent; accordingly, the second affirmative defense is severed and dismissed.517
Even if the neutral report privilege did apply, the evidence does not support that FNN
conducted good-faith, disinterested reporting. Like in Cianci v. New Times Pub. Co., where the
513
Id. at 167-68.
514
Id. at 168.
515
Id. at 169-70 (quoting Edwards, 556 F.2d at 120).
516
2018 WL 2100452 (N.Y. Sup. May 7, 2018).
517
Id. at *4-5.
72
Second Circuit held that defendant’s failure to reveal facts and plaintiff’s side of the story was
not disinterested reporting,518 FNN’s failure to reveal extensive contradicting evidence from the
public sphere and Dominion itself indicates its reporting was not disinterested.
Finally, as raised by the Court at the Hearing, the neutral reportage privilege does not
intellectually coexist with the actual malice standard, i.e., the need to demonstrate actual malice
is the purported prophylactic for FNN’s “slippery slope” concern regarding reporting news.
Other courts seem to adopt this approach to the neutral report privilege coexisting with the actual
malice standard. The Pennsylvania Supreme Court noted that the neutral report privilege is not
necessary because the actual malice standard provides considerable protection to the media in
defamation actions.519 The Pennsylvania Supreme Court held that the neutral report privilege
would, in actuality, eliminate a state’s power to provide protection to a person’s reputation
through a defamation lawsuit.520 The Pennsylvania Supreme Court concluded that it “would not
so sharply tilt the balance against the protection of reputation, and in favor of protecting the
media, so as to jettison the actual malice standard in favor of the neutral reportage doctrine.”521
2. Fair Report Privilege Fails to Shield Fox from Liability
New York has codified fair report doctrine in Section 74 of the Civil Rights Law. It
provides that a “civil action cannot be maintained . . . for the publication of a fair and true report
of any judicial proceeding, legislative proceeding or other official proceeding.”522 Thus, to apply
the privilege, a publication must be (i) a fair and true report and (ii) of an official proceeding.
The privilege is not triggered unless the report comments on a proceeding, not the underlying
518
639 F.2d 54, 69 (2d Cir. 1980).
519
Norton v. Glenn, 86 A.2d 48 (Pa. 2004).
520
Id. at 56-7.
521
Id. at 57.
522
N.Y. Civ. Rights Law § 74.
73
events of such a proceeding.523 New York courts “do not view statements in isolation.”524
Instead, the court should “consider the publication as a whole.”525 “If context indicates that a
challenged portion of a publication focuses exclusively on underlying events, rather than an
official proceeding relating to those events, that portion is insufficiently connected to the
proceeding to constitute a report of that proceeding.”526 “Doubt regarding whether the report is
‘of’ a proceeding is resolved against the privilege.”527
The report must also be “substantially accurate,” which is “tested by its effect upon the
average reader.”528 If a report produces a different effect on a reader than would a report
containing the precise truth about official proceedings, it is not substantially accurate.529 This
requirement is afforded “some degree of liberality” because a report is condensed and reflects
some degree of the author’s subjective viewpoint.530 Nonetheless, Section 74 will not shield
defamatory statements merely because a party has started judicial proceedings incorporating
those statements.531
FNN argues that under the fair report privilege, the Statements are not actionable
defamatory statements. FNN contends that “so long as it is clear that the press is covering or
commenting on proceedings or investigations, not presenting the allegations underlying them as
true, there is no defamation at all.”532 FNN alleges that because the privilege is construed
523
See Fine v. ESPN, Inc., 11 F.Supp.3d 209, 217 (N.D.N.Y. 2014); Corporate Training Unlimited, Inc. v. National
Broadcasting Co.¸ 868 F.Supp. 501, 509 (E.D.N.Y. 1994).
524
Alf v. Buffalo News, Inc., 995 N.E.2d 168, 169 (N.Y. 2013).
525
James v. Gannett Co., Inc., 353 N.E.2d 834, 838 (N.Y. 1976).
526
Fine, 11 F.Supp. at 217.
527
Dominion I at 46 (citing Cholowsky v. Civiletti, 69 A.D.3d 110, 114 (N.Y. App. Div. 2nd Dept. 2009)).
528
Id.529
Id.530
Holy Spirit Ass’n for Unif. of World Christianity v. New York Times Co., 399 N.E.2d 1185, 1187 (N.Y. 1979).
531
See Williams v. Williams, 246 N.E.2d 333, 337 (N.Y. 1969) (“We conclude that it was never the intention of the
Legislature in enacting section 74 to allow ‘any person’ to maliciously institute a judicial proceeding alleging false
and defamatory charges, and to then circulate a press release or other communication based thereon and escape
liability by invoking the statute.”).
532
FNN Ans. Br. at 67-68.
74
liberally, it protects reports of proceedings before they take place.533 It also states that the
privilege can be applied to other lawsuits that were commenced, such as Lin Wood’s.534 FNN
then states that, if the Court does not accept its logic and “artificially confine[s] [the doctrine] to
Powell’s lawsuits,” on November 25, 2020, Ms. Powell filed her first lawsuit and the privilege
was then triggered.535
As to the second prong, FNN provides little to illustrate that the statements were
substantially accurate reports, only citing the fact that affidavits were discussed, and Ms. Powell
used the same the language later used in her filings.536
Dominion contends that FNN fails on both prongs. First, Dominion reasons, FNN’s
interpretation of the privilege is incorrect because it only applies to statements made after
November 25, when Ms. Powell filed suit, and the context surrounding the statements indicates
they refer to the underlying events.537 Only one broadcast at issue even referenced Ms. Powell’s
lawsuit, which Dominion insists referred to Dominion’s alleged fraud, not the suit.538 Second, in
the unlikely event a reasonable viewer would take Ms. Powell’s statements as report on a
lawsuit, they would be inaccurate because Ms. Powell never substantiated her allegations.539
A similar fair report privilege argument was rejected in Khalil v. Fox Corporation, where
the speaker (Ms. Powell, as a guest on Lou Dobbs Tonight) was “not working on a case in an
533
Id. at 69. FNN cites Diamond v. Time Warner, Inc., 119 A.D.3d 1331, 1333 (N.Y. App. Div. 2014)
(“[S]tatement provided background facts for the [plaintiff’s] claims in pending and anticipated judicial
proceedings.”) privilege to “pending and anticipated” proceedings); Wenz v. Becker, 948 F.Supp. 319, 323
(S.D.N.Y. 1996) (finding official proceeding commenced where complaint was filed but answer was not); McNally
v. Yarnall, 764 F.Supp. 853, 856 (S.D.N.Y. 1991) (holding that attorney’s statement which “relates directly to a
possible position” as a defense related to the underlying charges). Notably, Diamond and McNally focus on the
“substantially accurate” prong, which is not what FNN uses them in support of, and although Wenz addresses
official proceedings, it does not help FNN because there, a complaint had been filed.
534
FNN Ans. Br. at 70.
535
Id. at 72.
536
Id. at 70-73.
537
Dominion MSJ at 174-75.
538
Id. at 175.
539
Id. at 175-76.
75
official capacity nor on behalf of a public agency during her investigation . . . and at no point did
Dobbs or Powell attribute the statements . . . to an official investigation or a judicial
proceeding.”540
The Court has already addressed this same argument for application of fair report in
Dominion I. As the Court noted previously, most of the contested statements were made before
any lawsuit had been filed in a court. Only one statement, made on the November 30, 2020, Lou
Dobbs Tonight broadcast, references an official proceeding, and therefore only that allegation
can be tested for the privilege. Because the fair report privilege only applies to substantially
accurate reports about proceedings, not the underlying facts, the statement fails. Ms. Powell
alleged that “all the machines are infected with the software code that allows Dominion to share
votes” and called it “the most massive and historical egregious fraud the world has ever seen.”541
Because the statements do not concern official proceedings, the fair report privilege should not
apply.
3. Statements of Fact or Mixed Opinion, Like Those Presently at Issue, Are Not Protected
by the Privilege for Opinion
“Since falsity is a necessary element of a defamation cause of action and only facts are
capable of being proven false, only statements alleging facts can properly be the subject of a
defamation action.”542 In contrast, “pure opinions” are not actionable.543 In New York, the
difference is a question of law.544
To ascertain the difference between a pure opinion and a statement of fact, New York
courts have articulated a four-factor test: (i) whether the specific language in issue has a precise
540
2022 WL 4467622, at *5-6 (S.D.N.Y. Sep. 26, 2022).
541
Dominion MSJ, Appx. C ¶ 179(m).
542
Davis v. Boeheim, 22 N.E.3d 999, 1004 (N.Y. 2014) (alteration and internal quotation marks omitted).
543
Id.544
Id.76
meaning that is readily understood; (ii) whether the statements are capable of being proven true
or false; (iii) an examination of the full context of the communication in which the statement
appears; and (iv) a consideration of the broader social context or setting surround the
communication including the existence of any applicable customs or conventions which might
signal to readers or listeners that what is being read or heard is likely to be opinion, not fact.545
An “opinion” is actionable if a “reasonable listener” would find the speaker conveyed
facts about the plaintiff.546 So “[t]he key inquiry is whether [the] challenged expression,
however labeled by defendant, would reasonably appear to state or imply assertions of objective
fact.”547
In making this inquiry, courts cannot stop at literalism. The literal words of
challenged statements do not entitle a media defendant to “opinion” immunity or a
libel plaintiff to go forward with its action. In determining whether speech is
actionable, courts must additionally consider the impression created by the words
used as well as the general tenor of the expression, from the point of view of the
reasonable person.548
New York law also recognizes “mixed opinions” as actionable statements.549 A mixed
opinion “implies that it is based on facts which justify the opinion but are unknown to those
reading or hearing it.”550
The Court went through a statement-by-statement analysis with the parties at the Hearing.
FNN contends that the Statements are all opinions, and therefore are not actionable defamatory
statements. Dominion contends the Statements all constitute statements of fact or, at worse,
mixed opinion.
545
Khalil, 2022 WL 4467622, at *7; see also Brian, 660 N.E.2d at 1129..
546
600 W. 115th St. Corp. v. Von Gutfeld, 603 N.E.2d 930, 934 (N.Y. 1992).
547
Immuno AG v. Moor-Jankowski, 567 N.E.2d 1270, 1273 (N.Y. 1991).
548
Id. at 1273–74.
549
Davis, 22 N.E.3d at 1004
550
Id.
77
FNN urges the Court to find that a reasonable viewer would understand that the
statements, in the immediate and broader social context in which the statement is made, convey
opinions, not fact.551 FNN cites case law to argue that the use of “[l]oose, figurative, or
hyperbolic language” “negate[s] the impression” that a person is “seriously” stating a fact.552
Here, according to FNN, given the context of the allegations, suggestions of investigating the
claims negate the impression that the statement is factual.553 Furthermore, FNN alleges that
“spirited debate on opinion shows does not lend well to statements of actual fact.”554 Under that
rationale, FNN claims that many of the contested statements are protected opinions of FNN
hosts, not actionable statements. FNN highlights phrases that it argues would cause a reasonable
viewer to understand the statements as opinions.555
Dominion argues the Statements are not protected opinions. Dominion avers that each of
the four kinds of allegations create a verifiable statement of fact.556 It quotes FNN employees
who testified that whether election was stolen and the evidence existed were both questions of
fact.557 Dominion also states that the context weighs in favor of finding that the Statements are
551
FNN Ans. Br. at 74 (citing Brian, 660 N.E.2d at 1127-28).
552
Id. (citing Milkovich v. Lorain J. Co., 497 U.S. 1, 21 (1990)).
553
Id.554
Id. at 74-75 (citing Mr. Chow of New York v. Ste. Jour Azur S.A., 759 F.2d 219, 226 (2d Cir. 1985) (recognizing
that in the context inquiry, “[s]ome types of writing or speech by custom or convention signal to readers or listeners
that what is being read or heard is likely to be opinion, not fact.”). See McDougal v. Fox News Network, LLC, 489
F.Supp.3d 174, 183 (S.D.N.Y. 2020) (holding Carlson’s statement that plaintiff engaged in extortion was
nonactionable hyperbole in light of (1) the context of Tucker Carlson Tonight and (2) jurisprudence that accusations
of extortion, without evidence, does not transform an allegation into actionable defamation); Herring Networks, Inc.
v. Maddow, 8 F.4th 1148, 1157 (9th Cir. 2021) (holding television host Rachel Maddow’s statement that “OAN
‘really literally is paid Russian propaganda’” was opinion).
555
Id. at 76. As an example, FNN cites to a November 13, 2020 segment of the Lou Dobbs Tonight show in which
Mr. Dobbs states “efforts to subvert President Trump and his administration have bene nothing less, in my opinion,
than treason.” Fox MSJ, Ex. A7, Dobbs.
556
Dominion MSJ at 79.
557
Id. at 80. See Dominion MSJ, Ex. 127, Lowell 128:4-9; Ex. 108, Cooper 175:11-16.
78
not opinions. Specifically, Fox News and Fox Business hold themselves to the public as news
organizations and recognize viewers rely on them for reliable, accurate facts.558
Attached to this decision is an Appendix. The Appendix goes through the Statements and
decides, as a matter of law, whether the Statement constitutes a statement of fact, mixed opinion
or opinion. The Court finds, as a matter of law, that the Statements are either fact or mixed
opinion.
Consistent with Dominion I, it is reasonably conceivable that viewers of the FNN show
segments and tweets of FNN hosts would not view the Statements as merely opinions of the
hosts, but either as actual assertions of fact, or implications that the hosts knew something that
the viewers do not, i.e., a “mixed opinion.” The Statements were capable of being proven true,
and in fact the evidence that would prove the Statements was discussed many times (but never
presented). Moreover, the context supports the position that the Statements were not pure
opinion where they were made by newscasters holding themselves out to be sources of accurate
information.
As in Dominion I, FNN hosts “repeatedly framed the issue as one of truth-seeking and
purported to ground interview questions in judicial proceedings and evidence” and did not read
the Statements as mere opinion.559 Furthermore, it appears oxymoronic to call the Statements
“opinions” while also asserting the Statements are newsworthy allegations and/or substantially
accurate reports of official proceedings.
Alternatively, the Statements cannot be privileged opinions to the extent the Statements
allege election fraud on the part of Dominion. The parties did not address this much in the
558
Id. at 80-81. See, e.g., Dominion MSJ, Ex. 98, Bartiromo 344:19-23 (stating she is a “newsperson” who “reports
the news”); Ex. 111, Dobbs 19:18-20:17 (stating viewers watch for “accurate information to inform themselves”).
559
Dominion I at 48.
79
briefing or at the Hearing; however, the Court of Appeals of New York has stated that
“[a]ccusations of criminal activity, even in the form of opinion, are not constitutionally
protected.560 The Court of Appeals of New York went on:
While inquiry into motivation is within the scope of absolute privilege, outright
charges of illegal conduct, if false, are protected solely by the actual malice test.
As noted by the Supreme Court of California, there is a critical distinction between
opinions which attribute improper motives to a public officer and accusations, in
whatever form, that an individual has committed a crime or is personally dishonest.
No First Amendment protection enfolds false charges of criminal behavior.561
As discussed above, the Statements are defamatory per se because the Statements
claimed that Dominion committed election fraud; manipulated vote counts through its
software and algorithms; is founded in Venezuela to rig elections for dictator Hugo
Chavez; and paid kickbacks to government officials who used the machines in the
Election. Dominion contends that the Statements strike at the basic integrity of its
business. That alone makes the Statements defamatory per se. The Statements also seem
to charge Dominion with the serious crime of election fraud. Accusations of criminal
activity, even in the form of opinion, are not constitutionally protected.
VI. CONCLUSION
For the foregoing reasons, the FC Motion and the FNN are DENIED. The Dominion
Motion is DENIED as to the element of Actual Malice and whether FC published the
Statements. The Dominion Motion is GRANTED, in part, and DENIED, in part, as set out in
this decision.
560
Rinaldi v. Holt, Rinehart & Winston, Inc., 366 N.E.2d 1299, 1307 (N.Y. 1977).
561
Id.80
The Court will allow this civil action to go to a jury trial. The jury questions will relate
to: (i) publication as to FC; (ii) actual malice as to FNN and/or FC; and (iii) whether Dominion
incurred any damages.
IT IS SO ORDERED
March 31, 2023.
Wilmington, Delaware
/s/ Eric M. Davis
Eric M. Davis, Judge
cc: File&ServeXpress
81
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
US DOMINION, INC., DOMINION )
VOTING SYSTEMS, INC., and )
DOMINION VOTING SYSTEMS )
CORPORATION, ) C.A. No.: N21C-03-257 EMD
)
Plaintiffs, )
)
v. )
)
FOX NEWS NETWORK, LLC, )
)
Defendant. )
)
)
US DOMINION, INC., DOMINION )
VOTING SYSTEMS, INC., and )
DOMINION VOTING SYSTEMS )
CORPORATION, )
) C.A. No. N21C-11-082 EMD
Plaintiffs, )
)
v. )
)
FOX CORPORATION, )
)
Defendant. )
Appendix
82
I. STANDARD OF REVIEW
A. FACT OR OPINION
Under New York law, the court must decide as a matter of law whether the challenged
statement is an opinion.562 The New York Constitution protects expressions of “pure” opinion
with absolute constitutional protection.563 “Imaginative expressions” and “rhetorical hyperboles”
are considered “pure” opinion and protected as such.564 “The inquiry into whether a statement
should be viewed as one of fact or one of opinion must be made from the perspective of an
‘ordinary reader’ of the statement.”565 “Rather than sifting through a communication for the
purpose of isolating and identifying assertions of fact, the court should look to the over-all
context in which the assertions were made and determine on that basis ‘whether the reasonable
reader would have believed that the challenged statements were conveying facts about the libel
plaintiff.’”566 “[T]he fact that a particular accusation originated with a different source does not
automatically furnish a license for others to repeat or publish it without regard to its accuracy or
defamatory character.”567
Courts look at several factors to determine whether a statement constitutes an opinion: (i)
whether the specific language in issue has a precise meaning that is readily understood; (ii)
whether the statements are capable of being proven true or false; (iii) an examination of the full
context of the communication in which the statement appears; and (iv) a consideration of the
broader social context or setting surround the communication including the existence of any
applicable customs or conventions which might signal to readers or listeners that what is being
read or heard is likely to be opinion, not fact.568
The court in Khalil v. Fox Corp. found that when statements included precise and readily
understood language such as “we have evidence” and “Khalil is a liaison with Hezbollah,” the
statements were capable of being proven true or false, and thus not an expression of opinion.569
The court stated that “the continued discussion of evidence and affirmative statements would not
indicate to a reader or listener that Dobbs or Powell were merely stating their opinions.”570
Likewise, the court in Gross. v. New York Times, Co. found that when the contested
statements were made “in the course of a lengthy, copiously documented newspaper series that
was written only after what purported to be a thorough investigation,” it would be understood by
a reasonable reader as assertions of fact capable of being proven true or false, despite the
defendant’s usage of hypothetical or conclusory language.571
562
Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 178 (2d Cir. 2000).
563
Id.564
Id.565
Id.566
Brian v. Richardson, 87 N.Y.2d 46, 51 (N.Y. 1995).
567
Id. at 54.
568
Khalil v. Fox Corp., 2022 WL 4467622, at *7 (S.D.N.Y. Sept. 26, 2022).
569
Id.570
Id.571
Gross v. New York Times, Co., 82 N.Y.2d 146, 154-155 (N.Y. 1993).
83
Additionally, the court in Immuno AG. v. Moor-Jankowski found that when a “letter to
the editor” was published in the Journal of Medical Primatology where the authors were fully
identified to the readers of the letter, the immediate context of the letter would “induce the
average reader of this Journal to look upon the communication as an expression of opinion rather
than a statement of fact, even though the language was serious and restrained.”572
However, the court in Brian v. Richardson found that when statements in dispute were
published in an Op Ed section of a newspaper which are “traditionally reserved for the airing of
ideas on matters of public concern,” and the defendant disclosed from the outset of the article
that they were not a disinterested observer, coupled with the tone of the article being “rife with
rumor, speculation and seemingly tenuous inferences,” a reasonable reader could not have
understood the disputed statements as assertions of fact.573
A party that repeats defamatory facts is normally responsible even though the re-
publication consists only of a quotation.574 Publication of facts attributable to a third person are
not automatically transformed into the opinion of the publisher even when the facts can be
separated out and no endorsement is given.575 As such, the Court will not only look to what is
said by the FNN host, but all the content in the Statement, even if what is said in the Statement
would constitute a “quotation” from third party.
B. MIXED OPINION
A mixed opinion is a statement of opinion that “implies that it is based upon facts which
justify the opinion but are unknown to those reading or hearing it . . . . The actionable element of
a ‘mixed opinion’ is not the false opinion itself – it is the implication that the speaker knows
certain facts, unknown to his audience, which support his opinion and are detrimental to the
person about whom he is speaking.”576
The court in Khalil v. Fox Corp. found that when the defendant “repeatedly gave the
impression . . . that they possessed unknown facts which supported their claims about Khalil,”
there was sufficient evidence to find that the challenged statements constituted actionable “mixed
opinions.”
However, the court in Nunes v. NBCUniversal Media, LLC found that the defendant’s
statement, “Still, the Republicans have kept Mr. Nunes on as the top Republican on the
intelligence committee. How does that stand? How does that stay a thing?” was not an actionable
statement of fact or a mixed opinion because the statement did not have a precise meaning, is not
572
Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 253-54 (N.Y. 1991).
573
Brian, 87 N.Y.2d at 53.
574
Hogan v. Herald Co., 84 A.D. 470, 477 (N.Y. App. Div. 4th Dept. 1983), aff’d, 444 N.E.2d 1002 (N.Y. 1982).
575
Weiner v. Doubleday & Co., Inc., 549 N.E.2d 453, 455-56 (N.Y. 1989).
576
Khalil, 2022 WL 4467622, at *2 (citing Sorvillo v. St. Francis Preparatory Sch., 607 F. App’x 22, 24 (2d Cir.
2015)).
84
capable of being proved or disproved, and the average viewer would not reasonably believe that
the statement was based on undisclosed facts.577
II. THE STATEMENTS
A. NOVEMBER 8, 2020, SUNDAY MORNING FUTURES BROADCAST:
1. Excerpt from Dominion:
Powell: Yes. There has been 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. . . . they . . . used an
algorithm to calculate the votes they would need to flip and they used computers to
flip those votes . . . from Trump to Biden . . .
Bartiromo: Sidney, I want to ask you about these algorithms and the Dominion
software . . . Sidney, we talked about the Dominion software. I know that there
were voting irregularities. Tell me about that.
Powell: That’s putting it mildly. The computer glitches could not and should not
have happened at all. That is where the fraud took place, where they were flipping
votes in the computer system or adding votes that did not exist. We need an audit
of all the computer systems that played any role in this fraud whatsoever. . . . They
had the algorithms . . . That’s when they had to stop the vote count and go in and
replace votes for Biden and take away Trump votes.
Bartiromo: I’ve never seen voting machines stop in the middle of an election, stop
down and assess the situation.578
2. Omitted Context Offered by Fox:
Bartiromo: President Trump says the votes are wrong, and he is readying new
lawsuits to drop tomorrow . . . containing what he says is evidence of voter and
ballot fraud, potentially a stolen election. Coming up, Rudy Giuliani and Sidney
Powell make the president’s case right here.
Bartiromo: But, first, President Trump responding to the media’s announcement of
a Biden presidency yesterday with this statement. “The simple fact is, the election
is far from over.” . . .
577
Nunes v. NBCUniversal Media, LLC, 2022 WL 17251981, at *8 (S.D.N.Y. Nov. 28, 2022). For context, the
defendant was commenting on allegations that the plaintiff, the then-Ranking Member of the House Intelligence
Committee, accepted a package from a sanctioned Russian agent, Andriy Derkach.
578
Compl. ¶ 179, Sunday Morning Futures with Maria Bartiromo, FOX NEWS (Nov. 8, 2020),
https://archive.org/details/FOXNEWSW_20201108_150000_Sunday_Morning_Futures_With_Maria_Bartiromo/sta
rt/2501/end/2561; Maria Bartiromo (@MariaBartiromo), TWITTER (Nov. 8, 2020, 2:13 pm),
https://twitter.com/MariaBartiromo/status/1325516879033741319 (Ex. 4).
85
Bartiromo: The first question everybody wants to know is, what is the evidence the
president has alluded to in terms of ballot fraud? What can you tell us? . . .
Giuliani: [R]ight now, we have one. We have two that are being drafted, and the
potential is 10. We haven’t investigated all the rest of those states. . . . But we have
evidence in the rest of those states. You want an estimate? By the end of the week,
we’ll have four or five. . . .
Bartiromo: If this was systemic, and you have got all this evidence, where is the
DOJ?
Giuliani: The answer to that is, I don’t know, and I can’t worry about it. . . . But,
you know, it takes a while to collect 2,000 affidavits, of which we have about half
now. . . . Bartiromo: So, how long will this take, Rudy? . . .
Bartiromo: We just heard from Rudy Giuliani . . . [T]here are 10 states, he says,
that are potentially stolen, 800,000 votes in question, according to Rudy Giuliani. .
..
Bartiromo: President Trump’s legal team . . . is preparing for all-out war, beginning
with a slew of new lawsuits this week . . . along with what our next guest says is
evidence of voter fraud. Sidney Powell is . . . fighting on the front lines of this battle
as part of the president’s legal team. . . . Can you walk us through what has taken
place here as you see it.
Powell: Yes. There has been 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. . . . they . . . used an
algorithm to calculate the votes they would need to flip and they used computers to
flip those votes . . . from Trump to Biden . . .
Bartiromo: If this is so obvious, then why aren’t we seeing massive government
investigation?
Powell: Those – that’s where the fraud took place, where they were flipping votes
in the computer system, or adding votes that did not exist. . . .
Bartiromo: I have never seen voting machines stop in the middle of an election,
stop down, and assess the situation. . . .
Bartiromo: Sidney, these are incredible charges that you are making this morning.
We, of course, will be following this.
Bartiromo: Sidney, I want to ask you about these algorithms and the Dominion
software . . . Sidney, we talked about the Dominion software. I know that there
were voting irregularities. Tell me about that.
86
Powell: That’s putting it mildly. The computer glitches could not and should not
have happened at all. That is where the fraud took place, where they were flipping
votes in the computer system or adding votes that did not exist. We need an audit
of all the computer systems that played any role in this fraud whatsoever. . . . They
had the algorithms . . . That’s when they had to stop the vote count and go in and
replace votes for Biden and take away Trump votes.
Bartiromo: I’ve never seen voting machines stop in the middle of an election, stop
down and assess the situation.579
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used during the segment,
such as “Sidney, we talked about the Dominion software. I know there were voting
irregularities” and “[c]an you walk us through what has taken place here as you see it”
indicates to the reasonable viewer that the events in question actually occurred, and Ms.
Bartiromo’s questioning of her guests is an inquiry of what the evidence is, not whether the
evidence exists in the first place. The assertive language used during the segment does not
indicate that these were merely opinions of Ms. Bartiromo or her guests, but an affirmative
statement of the events which allegedly occurred.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
B. NOVEMBER 12, 2020 LOU DOBBS TONIGHT BROADCAST:
1. Excerpt from Dominion:
Dobbs: Let’s talk about, just for a moment, an update on Dominion . . .
Giuliani: Dominion is a company that’s owned by another company called
Smartmatic, through an intermediary company called Indra. Smartmatic is a
company that was formed . . . by three Venezuelans who were very close to, very
close to the dictator, Chávez of Venezuela and it was formed in order to fix
elections. That’s the company that owns Dominion. . . . [A]ll of its software is
Smartmatic software . . . So we’re using a … company that is owned by
Venezuelans who were close to – were close to Chávez, are now close to Maduro,
have a history, they were founded as a company to fix elections . . .
Dobbs: It’s stunning. And they’re private firms and very little is known about their
ownership, beyond what you’re saying about Dominion. It’s very difficult to get a
Fox Appendix of Alleged Defamatory Statements (D.I. No. 1026) (“Fox Appendix”), (Nov. 8, 2020, Sunday
579
Morning Futures Tr.. Ex. A2.) (Jan. 23, 2023).
87
handle on just who owns what and how they’re being operated. And by the way,
the states, as you well know now, they have no ability to audit meaningfully the
votes that are cast because the servers are somewhere else and are considered
proprietary and they won’t touch them. They won’t permit them being touched. . .
. This looks to me like it is the end of what has been a four-and-a-half – the endgame
to a four-and-a-half yearlong effort to overthrow the president of the United States.
It looks like it’s exactly that. . . . This election has got more firsts than any I can
think of and Rudy, we’re glad you’re on the case and pursuing what is the truth.580
2. Omitted Context Offered by Fox:
Dobbs: The battle for the White House is raging and President Trump and his legal
team have no plans to call it quits. Court action is picking up. . . . [A]nd we’re told
more lawsuits are planned and in the works.
...
Dobbs: So joining us now, Jenna Ellis, spokeswoman for the Trump campaign’s
legal team, attorney to President Trump[.] . . . I want to turn, if I may to actually
where we are in the challenges in all of these states[.]
...
Ellis: [W]e are still uncovering more evidence. We’re only eight days after the
election. We still have a lot of legal challenges coming.
...
Rep. Andy Biggs: Well, in Maricopa County where two-thirds of voters live, you
have Dominion as the vendor right here.
...
Dobbs: So you’ve got . . all sorts of allegations are being made about the
trustworthiness of those systems and whether they are or are they not vulnerable to
hacking.
...
Biggs: We need to find that out and get to the bottom of this.
...
Dobbs: President Trump is zeroing in on Dominion voting machines.
...
Dobbs: A January 2019 report from the Texas Secretary of State found a number
of issues with Dominion’s Democracy Suite 5.5A machine, the same model used,
for example, in Pennsylvania.
580
Compl. ¶ 179, Lou Dobbs (@LouDobbs), TWITTER (Nov. 12, 2020, 6:03 PM),
https://twitter.com/LouDobbs/status/1327024215887851521; Lou Dobbs, Rudy, FACEBOOK (Nov. 12, 2020),
https://www.facebook.com/watch/?v=10133836724816 90; Lou Dobbs Tonight (@loudobbstonight), INSTAGRAM
(Nov. 12, 2020) https://www.instagram.com/p/CHgkRWyBBus/ (Ex. 18).
88
...
Dobbs: Rudy . . . Let’s talk about just for a moment an update on Dominion and
how important do you believe the concerns that are being expressed in a number of
states about the ability of these machines not to be hacked.
...
Giuliani: Dominion is a Canadian company, but all of its software is Smartmatic
software. . . . They have a terrible record and they are extremely hackable.
...
Dobbs: And now we have to find out whether they did, and with those servers
whether they’re in Canada, whether they’re in Barcelona or Spain or Germany, we
know a number of companies, all of them are private, five of them, five of the top
voting companies in this country -- at least if they are not in this country, they are
processing our votes in this country – they comprise 90 percent of all of the election
voting market in this country. It’s stunning and they are private firms, and very little
is known about their ownership beyond what you’re saying about Dominion. It’s
very difficult to get a handle on just who owns what and how they are being
operated. And by the way, the states, as you well know now, they have no ability
to audit, meaningfully, the votes that are cast, because the servers are somewhere
else and are considered proprietary, and they won’t touch them. They won’t permit
them being touched.
...
Dobbs: [H]ow do you proceed now?
Dobbs: Rudy . . . this looks to me like it maybe -- and I say maybe, I’m not
suggesting it is -- . . . [b]ut following the operation as when President Trump was a
candidate to block his presidency. To follow . . . the special counsel, first 11 months
of investigation, then the special counsel investigation which went nowhere except
to exonerate him. And the phony impeachment process. This looks to me like it is
the end of what has been . . . a four-and-a -half-year-long effort to overthrow the
President of the United States. It looks like it is exactly that[.] . . . [I]t is
extraordinary that this election has got more firsts than any I can think of. And,
Rudy, we’re glad you’re on this case and pursuing what is the truth and
straightening out what is a very complicated and difficult story.581
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used during the segment,
such as “[a]nd by the way, the states, as you well know now, they have no ability to audit
meaningfully the votes that are cast because the servers are somewhere else and are considered
581
Fox Appendix, November 12, 2020, Lou Dobbs Tonight Tr. Ex. A5.
89
proprietary and they won’t touch them” and “Rudy, we’re glad you’re on this case and pursuing
what is the truth and straightening out what is a very complicated and difficult story” indicates
to a reasonable viewer that the events in question actually occurred by using “matter of fact”
language, and that the claims presented by Mr. Giuliani are not unproven conspiracy theories,
but the “truth.”
While a portion of the segment includes language implying that Dobbs is asserting his
own opinion, “Rudy . . . this looks to me like it maybe -- and I say maybe, I’m not suggesting it
is –” the notion is negated by the rest of the sentence which asserts a fact. Additionally, when
viewed in the full context of the overall communication being expressed during the segment, a
reasonable viewer would understand that Dobbs and Giuliani are asserting facts, not their own
opinions.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
C. NOVEMBER 13, 2020 LOU DOBBS TONIGHT BROADCAST:
1. Excerpt from Dominion:
Dobbs: Let’s start with Dominion, a straight-out disavowal of any claim of fraud
against the company, its software or machines. Your reaction.
Powell: Well, I can hardly wait to put forth all the evidence we have collected on
Dominion, starting with the fact it was created to produce altered voting results in
Venezuela for Hugo Chávez and then shipped internationally to manipulate votes
for purchase in other countries, including this one. . . . We also need to look at and
we’re beginning to collect evidence on the financial interests of some of the
governors and Secretaries of State who actually bought into the Dominion Systems,
surprisingly enough – Hunter Biden type graft to line their own pockets by a getting
voting machine in that would either make sure their election was successful or they
got money for their family from it.
Dobbs: Well, that’s straightforward.
Powell: People need to come forward now and get on the right side of this issue
and report the fraud they know existed in Dominion Voting Systems, because that’s
what it was created to do. It was its sole original purpose. It has been used all over
the world to defy the will of people who wanted freedom.
Dobbs: Sidney, at the outset of this broadcast I said that this is the culmination of
what has been an over a four-year effort to overthrow this president; to first deny
his candidacy, the election, but then to overthrow his presidency. This looks like
the effort to carry out an endgame in the effort against him. Do you concur?
Powell: Oh, absolutely. . . .
90
Dobbs: Well, good, because this is an extraordinary and such a dangerous moment
in our history. . . . Sidney, we’re glad that you are on the charge to straighten out
all of this. It is a foul mess and it is far more sinister than any of us could have
imagined, even over the course of the past four years.582
2. Omitted Context Offered by Fox:
Dobbs: Those efforts to subvert President Trump and his administration have been
nothing less, in my opinion, than treason. An attack on the Constitutional Republic,
an attack on the American people. Their conspiracy in league with the Democratic
Party, its leaders and the corporate-owned left-wing national media has reached the
end game. We are at the conclusion of what has been a four-year assault on Donald
Trump.
...
Dobbs: Breaking news now. Dominion Voting Systems say they categorically deny
any and all of President Trump’s claims that their voting machines caused any
voter fraud in key swing states or electoral fraud[.] . . . [J]oining us tonight is Sidney
Powell, a member of President Trump’s legal team[.] . . . Let’s start with Dominion,
a straight-out disavowal of any claim of fraud against the company, its software or
machines.
...
Dobbs: [Y]ou’re going to have to be quick to go through and to produce that
investigation and the results of it. The December deadlines are approaching for
electors and just as we saw in 2000 with Bush v. Gore, how critical are those
deadlines? And how urgent does that make your investigation and discovery?
...
Dobbs: With these allegations, these charges, is the F.B.I. already carrying out an
investigation of these voting companies where their servers are domiciled[?]
...
Dobbs: Sidney, at the outset of this broadcast, I said this is the culmination of what
has been over a four-year effort to overthrow this President[.] . . . This looks like
the effort to carry out an end game in the effort against him. Do you concur?583
582
Dominion v. FNN Compl. ¶ 179, Lou Dobbs (@LouDobbs), TWITTER (Nov. 13, 2020, 5:35 PM),
https://twitter.com/LouDobbs/status/1327379704014393344; Lou Dobbs, Release the Kraken, FACEBOOK (Nov. 13,
2020), https://www facebook.com/115777632950/ videos/680800582822978; Lou Dobbs Tonight
(@loudobbstonight), INSTAGRAM (Nov. 13, 2020), https://www.instagram.com/p/CHjF39Uh7Wy/ (Ex. 19)
583
Fox Appendix, November 13, 2020, Lou Dobbs Tonight Tr. Ex. A7.
91
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used during the segment,
such as “[w]ell, that’s straightforward” when responding to Powell’s claims, and telling
Powell, “Sidney, we’re glad that you are on the charge to straighten out all of this[]” implies
to a reasonable viewer that Powell’s claims are based on fact, and that she is in the process of
“straightening out” the “foul mess.” Additionally, when viewed in the full context of the overall
communication being expressed during the segment, a reasonable viewer would understand that
Dobbs and Powell are asserting facts about Dominion, not their subjective opinions.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
D. NOVEMBER 14, 2020 STATEMENT ON THE @LOUDOBBS TWITTER ACCOUNT:
1. Excerpt from Dominion:
Read all about the Dominion and Smartmatic voting companies and you’ll soon
understand how pervasive this Democrat electoral fraud is, and why there’s no way
in the world the 2020 Presidential election was either free or fair. #MAGA
@realDonaldTrump #AmericaFirst #Dobbs.
Embedded in that tweet was a Rudy Giuliani tweet:
Did you know a foreign company, DOMINION, was counting our vote in
Michigan, Arizona and Georgia and other states. But it was a front for
SMARTMATIC, who was really doing the computing. Look up SMARTMATIC
and tweet me what you think? It will all come out.584
2. Omitted context offered by Fox:
None offered by Fox.
3. The Statement Asserts a Fact or Mixed Opinion.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used in the tweet, such as
“[r]ead all about the Dominion and Smartmatic voting companies and you’ll soon
understand how pervasive this Democrat electoral fraud is, and why there’s no way in the
world the 2020 Presidential election was either free or fair[]” makes a factual assertion that
Dominion were involved in the electoral fraud conspiracy. Furthermore, the accompanying
584
Compl. ¶ 179, Lou Dobbs (@LouDobbs), TWITTER (Nov. 14, 2020, 11:27 AM),
https://twitter.com/LouDobbs/status/1327649331789385728 (Ex. 7).
92
retweet of Mr. Giuliani would be seen by a reasonable viewer as confirmation of the fact asserted
in the Statement. When viewed in the full context of the overall communication being expressed
in the tweets, a reasonable viewer would understand that Statement is asserting facts regarding
Dominion, not an opinion.
At best, a strained reading may classify the Statement as a mixed opinion. The Statement
implies that there are facts, unknown to the reader, which justify the opinion. Mr. Dobbs asks
the reader to “[r]ead all about the Dominion and Smartmatic voting companies” which would
lead the reasonable viewer to come to the same conclusion as Mr. Dobbs, i.e., Dominion
committed election fraud. Nevertheless, a mixed opinion is actionable under New York law.
As such, the Court finds that the Statement asserts facts or a mixed opinion, and therefore
not protected under the opinion privilege.
E. NOVEMBER 14, 2020 JUSTICE W/ JUDGE JEANINE BROADCAST:
1. Excerpt from Dominion:
Pirro: The Dominion software system has been tagged as one allegedly capable of
flipping votes. Now you’ll hear from Sidney Powell in a few minutes who will
explain what she has unearthed in the creation of Dominion.
Powell: I am working on the massive aspect of – of system-wide election fraud,
definitely impacting the swing states and likely going far beyond that. We’re
talking about the alteration and changes in millions of – of votes; some being
dumped that were for President Trump, some being flipped that were for President
Trump, computers being overwritten to ignore signatures. All kinds of different
means of manipulating the Dominion and Smartmatic software that, of course, we
would not expect Dominion or Smartmatic to admit.
Pirro: I assume that you are getting to the bottom of exactly what Dominion is,
who started Dominion, how it can be manipulated if it is manipulated at all, and
what evidence do you have to prove this? . . . If you could establish that there is
corruption in the use of this software, this Dominion software, as you allege, and
you say you have evidence, how do you put that together and prove that on election
night, or immediately after, that at the time the votes were being tabulated or put
in, that we can prove that they were flipped?
Powell: It was created for the express purpose of being able to alter votes and
secure the re-election of Hugo Chávez and then Maduro. . . . There’s an American
citizen who has exported it to other countries. And it is one huge, huge criminal
conspiracy that should be investigated by military intelligence for its national
security implications.
93
Pirro: Yes, and it – hopefully, the Department of Justice, but – but who knows
anymore. Sidney Powell, good luck on your mission.585
2. Omitted Context Offered by Fox:
Pirro: The most important part of democracy is to do it correctly. Most important
question tonight is, did we in 2020? . . . America . . . demands all due diligence be
exercised in this highly contested presidential election.
...
Pirro: The media does not call an election. No one state has yet even certified its
vote. Certification, in fact, has not even begun. In fact, the electors do not vote until
December 14th. We have one President at a time and until there are certifications
or the electors vote on December 14th, the democratic process must be allowed to
play out. But many questions remain. On election night around midnight, President
Trump was ahead in Pennsylvania, Michigan and Wisconsin. And, then, one by
one, the complaints now in the form of affidavits and lawsuits, started coming in.
...
Pirro: The Dominion Software System has been tagged as one allegedly capable of
flipping votes. Now, you’ll hear from Sidney Powell in a few minutes, who will
explain what she has unearthed in the creation of Dominion.
...
Pirro: And why did a Trump-hating Secretary of State in Georgia agree with Stacey
Abrams? And there is a lawsuit by Lin Wood in the United States District Court in
Georgia contesting those decisions.
...
Pirro: The question ultimately is, will any of these allegations affect the sufficient
number of votes to change the result of the election? Maybe yes, maybe no. If the
answer is President Trump did not win, then on January 20, Joe Biden will be my
President. . . . And in the meantime, please don’t tell me that . . . we cannot pursue
these irregularities. . . . We will pursue all legal avenues where there are
irregularities, anomalies, illegalities and corruption. And until the certification and
the electors vote, that is not a lot to ask.
...
Pirro: Good evening, Congressman [Kevin McCarthy], thanks for being here. You
know, the Democrats are criticizing us for questioning things that are very much a
585
Compl. ¶ 179. Jeanine Pirro (@JudgeJeanine), TWITTER (Nov. 14, 2020, 9:15 PM),
https://twitter.com/JudgeJeanine/status/1327797216329617409; Jeanine Pirro (@JudgeJeanine), TWITTER (Nov. 14,
2020, 9:45 PM), https://twitter.com/judgejeanine/status/1327804765804261376; Jeanine Pirro (@JudgeJeanine),
TWITTER (Nov. 17, 2020, 9:49 AM), https://twitter.com/JudgeJeanine/status/1328711979163324416; Judge Jeanine
Pirro, Part One: Opening Statement, FACEBOOK (Nov. 14, 2020), https://fb.watch/47gZMAHaDn/; Judge Jeanine
Pirro, Sidney Powell, FACEBOOK (Nov. 14, 2020), https://fb.watch/47hF09eZYP/ (Ex. 2).
94
part of lawsuits, affidavits, where people are swearing that they’re telling the truth.
What are your thoughts on all this?
...
Pirro: I referenced some of the affidavits that are part of the lawsuits going on and
the most recent lawsuit was filed yesterday by Lin Wood in Georgia[.] . . . How do
you think this is all going to end up, [Congressman] Jim [Jordan]?
...
Jordan: Well, I mean, we need to investigate. I mean, look, the Democrats spent
four years investigating the Russian hoax, but they don’t want to take four weeks
to investigate the integrity of this election when you had all these affidavits, you
have all these concerns? You
had the situation where 6,000 votes in Michigan went for Biden, but they were
actually supposed to go for President Trump. So we need to investigate.
...
Pirro: [A]nd we can’t even follow a legitimate legal process to determine whether
or not there was some kind of irregularity or illegality.
...
Pirro: The election results in several battleground states continue to be under
intense focus as allegations of voter fraud are being investigated. Trump campaign
attorney and former federal prosecutor, Sidney Powell joins me now with more. . .
Can you give me some idea of what you’re working on now and what exactly you
are doing on the Trump Campaign, in this effort to identify problems with the
election?
Pirro: Well, and now that you mentioned that, they’ve denied that they have done
anything improper and they deny that this claim that there’s 6,000 votes that went
from President Trump to Biden had anything to do with their software. But at the
same time, as you put together your case, Sidney, I assume that you are getting to
the bottom of exactly what Dominion is, who started Dominion, how it can be
manipulated, if it is manipulated at all, and what evidence do you have to prove
this.
Pirro: “[W]hat is your intent here? If you can establish that there is corruption in
the use of this software, this Dominion software, as you allege, and you say you
have evidence, how do you put that together and prove that on Election Night or
immediately after that at the time that the votes were being either tabulated or put
in, that we can prove that they were flipped?
...
Powell: [A]nd it is one huge, huge criminal conspiracy that should be investigated
by military intelligence for its national security implications.
...
95
Pirro: Yes, and hopefully, the Department of Justice but who knows anymore.
Sidney Powell, good luck on your mission.586
3. The Statement Asserts a Fact or a Mixed Opinion.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used in the segment, such as
“[n]ow you’ll hear from Sidney Powell in a few minutes who will explain what she has
unearthed in the creation of Dominion” and “I assume that you are getting to the bottom of
exactly what Dominion is, who started Dominion, how it can be manipulated if it is
manipulated at all,” makes factual assertions as to Dominion “flipping votes,” Dominion’s
ownership and control, and its susceptibility to being “manipulated.” When viewed in the full
context of the overall communication expressed during the segment, a reasonable viewer would
understand that the Statement is asserting facts regarding Dominion, not an opinion.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
F. NOVEMBER 15, 2020 FOX AND FRIENDS SUNDAY BROADCAST:
1. Excerpt from Dominion:
Bartiromo: [S]o much news on the software that was used on the voting machines
on election night. There is much to understand about Smartmatic, which owns
Dominion Voting Systems. They have businesses in Venezuela, Caracas. . . . We’re
going to talk about it with Rudy Giuliani and why he does believe he will be able
to overturn this election with evidence. He will join me along with Sidney Powell
to give us an update on their investigation. This is very important to understand
what was going on with this software. Sidney Powell is also talking about potential
kickbacks that government officials who were asked to use Dominion actually also
enjoyed benefits to their families.587
2. Omitted context offered by Fox:
None offered by Fox.
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used in the segment, such as
“[t]here is much to understand about Smartmatic, which owns Dominion Voting Systems[,]”
586
Fox Appendix, November 14, 2020, Justice with Judge Jeanine Tr. Ex. A9.
587
Compl. ¶ 179, Fox and Friends Sunday, MEDIA MATTERS FOR AMERICA (Nov. 15, 2020),
https://www.mediamatters.org/media/391956 (Ex. 9).
96
and “[t]hey have businesses in Venezuela, Caracas[]” make factual assertions regarding
Dominion and its alleged ownership by Smartmatic. The statement, “Sidney Powell is also
talking about potential kickbacks that government officials who were asked to use Dominion
actually also enjoyed benefits to their families[]” creates an inference to a reasonable viewer that
Dominion bribed government officials. When viewed in the full context of the overall
communication expressed during the segment, a reasonable viewer would understand that
Statement is asserting facts regarding Dominion, not an opinion.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
G. NOVEMBER 15, 2020 SUNDAY MORNING FUTURES BROADCAST:
1. Excerpt from Dominion:
Bartiromo: Plus, Sidney Powell on the Venezuela connection and whether
kickbacks were involved for those taking on Dominion voting machines, as a hand
recount of nearly five million ballots is under way in Georgia.
Giuliani: [T]he rigging . . . went on . . . [A] company that did the votes in 27 states
. . . uses Venezuela company software that’s been used to steal elections in other
countries. . . . And the software that they use is done by a company called
Smartmatic. It’s a company that was founded by Chávez and by Chávez’s two
allies, who still own it. And it’s been used to cheat in elections in South America. .
. . Dominion sends everything to Smartmatic. Can you believe it? Can you believe
it? Our votes are sent overseas. They are sent to someplace else, some other
country. Why do they leave our country?
Bartiromo: Yes.
Giuliani: And this company had – and this company has tried-and-true methods
for fixing elections by calling a halt to the voting when you’re running too far
behind. They have done that in prior elections. . . . In Detroit, we have evidence
that 100,000 ballots were brought in at 4:30 in the morning and counted and to the
extent that our witnesses and there are four of them saw it, and one of them is an
ex-employee of Dominion, and according to them every single ballot was for Biden
and not only that whatever ballots they could see because they weren’t Republican
so they could get closer, every ballot they could see just had Biden’s name on it,
nobody else, not even another Democrat. Why does that happen? It happens
because you know you’re behind, Dominion notifies you, you call off the counting
and then you start doing ballots like this.
Bartiromo: Look, I want to show this graphic of the swing states that were using
Dominion and this software, the Smartmatic software. You just said it all. This is
a Smartmatic, a Delaware entity registered in Boca Raton, Florida, activities in
Caracas, Venezuela. The voting machines were used, Dominion voting machines
97
were used in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin.
And I have a graphic showing the states where they stopped counting, which I
thought was also strange, to stop counting in the middle of election night. One
source says that the key point to understand is that the Smartmatic system has a
backdoor that allows it to be . . .
Giuliani: Yeah.
Bartiromo: . . . or that allows the votes to be mirrored and monitored, allowing an
intervening party a real-time understanding of how many votes will be needed to
gain an electoral advantage. Are you saying the states that use that software did
that?
Giuliani: I know I can prove that they did it in Michigan. I can prove it, with
witnesses. . . . [Y]es, there is a backdoor.
Bartiromo: Right.
Giuliani: We have people that I can’t really disclose, that can describe the hardware
in great detail. We have some of the people, former government employees, our
government employees, and others that were there at the creation of Smartmatic,
they can describe it. They can draw it, they can show it, and then we have proof
that I can’t disclose yet . . . I mean, I can’t imagine you’d give a contract to a
company, if you went one step further and found out it’s really being run by people
that are close to Maduro and Chávez.
Bartiromo: According to public records, Dominion voting machines are used in
2,000 jurisdictions in 30 states. . . . That’s troubling, given we already know that at
least two software glitches in Georgia and Michigan occurred on election night.
Attorney Sidney Powell is leading the charge against Dominion. And she says she
has enough evidence of fraud to launch a massive criminal investigation. . . . I want
to get right into it. We just heard about the software made by Smartmatic from
Rudy.
Powell: President Trump won by not just hundreds of thousands of votes but by
millions of votes that were shifted by this software that was designed expressly for
that purpose. We have sworn witness testimony of why the software was designed.
It was designed to rig elections. . . . It was exported internationally for profit by the
people that are behind Smartmatic and Dominion. They did this on purpose. It was
calculated. They have done it before. We have evidence from 2016 in California.
We have so much evidence I feel like it’s coming in through a fire hose.
Bartiromo: Wow, so, Sidney, you feel that you will be able to prove this? Do you
have the software in your possession? Do you have the hardware in your
possession? How will you prove this, Sidney?
98
Powell: Well, I have got lots of ways to prove it, Maria, but I’m not going to tell
on national TV what all we have. I just can’t do that. . . . [T]his is a massive election
fraud, and I’m very concerned it involved not only Dominion and its Smartmatic
software, but that the software essentially was used by other election machines also.
It’s the software that was the problem. . . . They can put – it’s like drag-and-drop –
Trump votes to a separate folder and then delete that folder. . . . We have even got
evidence of some kickbacks, essentially.
Bartiromo: Kickbacks. I want to take a short break and come back on that. And I
want to ask you about the kickbacks and who took kickbacks in which states. . . .
You said that there may have been kickbacks to some people who accepted the
Dominion software. Tell me what you mean.
Powell: Well, I mean we’re collecting evidence now from various whistle- blowers
that are aware of substantial sums of money being given to family members of state
officials who bought this software. I mean, we’re talking about $100 million
packages for new voting machines suddenly in multiple states, and benefits ranging
from financial benefits for family members to sort of what I would call election
insurance, because they know that they can win the election if they are using that
software.
Bartiromo: Which governor or which government official accepted hundreds of
millions of dollars in benefits for their family as they took on this software?
Powell: We’re still collecting the evidence on that, but it’s more than one.
Bartiromo: OK. So, you can’t say who you believe took kickbacks
Powell: We have identified mathematically the exact algorithm they used and
planned to use from the beginning to modify the votes, in this case, to make sure
Biden won. . . . It’s massive election fraud. It’s going to undo the entire election.
Bartiromo: And, Sidney, you say you have an affidavit from someone who knows
how this system works and was there with the planning of it. You believe you can
prove this in court?
Powell: Oh, yes. We have a sworn – essentially, a sworn statement from a witness
who knew exactly how it worked from the beginning, why it was designed to work
that way, and saw when things started shutting down, and they started – stopped
counting the votes here. That was the same play that had worked in other countries.
Bartiromo: Wow. This is explosive.588
588
Compl. ¶ 179Sunday Morning Futures, FOX NEWS (Nov. 15, 2020),
https://archive.org/details/FOXNEWSW_20201115_150000_Sunday_Morning_Futures_With_Maria_Bartiromo/;
Maria Bartiromo (@MariaBartiromo), TWITTER (Nov. 15, 2020, 11:13 AM),
https://twitter.com/MariaBartiromo/status/1328008263 833690117 (Giuliani); Giuliani: Trump is contesting the
99
2. Omitted Context Offered by Fox:
Bartiromo: Breaking news this morning on the software that President Trump says
was weaponized against him. Coming up, President Trump’s legal team with new
evidence this morning of backdoors on voting machines, ballot tampering, and
election interference, Rudy Giuliani with new affidavits and lawsuits charging
fraud . . . Plus, Sidney Powell on the Venezuela connection and whether kickbacks
were involved for those taking on Dominion voting machines.
...
Bartiromo: President Trump’s legal team has exactly one month to produce enough
evidence to overturn the 2020 election. With a slew of lawsuits pending in multiple
states, it’s a tall task.
(Trump’s tweet on screen during the interview segment.)
Giuliani: And the software that they use is done by a company called Smartmatic,
a company that was founded by Chavez and by Chavez’s two allies, who still own
it. And it’s been used to cheat in elections in South America. It was banned by the
United States several -- about a decade ago. It’s come back now as a subcontractor
to other companies. It sort of hides in the weeds. But Dominion sends everything
to Smartmatic. Can you believe it? Our votes are sent overseas. They are sent to
someplace else, some other country. Why do they leave our country?
Giuliani: And this company had -- and this company has
tried-and-true methods for fixing elections.
...
Bartiromo: Will you be able to prove this, Rudy?
election ‘vigorously’ in the courts, FOX NEWS (Nov. 15, 2020),
https://video.foxnews.com/v/6209933935001?playlist id=3386055101001#sp=show-clips; Maria Bartiromo
(@MariaBartiromo), TWITTER (Nov. 15, 2020, 11:39 AM),
https://twitter.com/MariaBartiromo/status/1328014693387087873 (Powell); Attorney Powell on election legal
challenges that remain active in several states, FOX NEWS (Nov. 15, 2020),
https://video.foxnews.com/v/6209930642001?playlist_id=3386055101001#sp=show-clips; Maria Bartiromo
(@MariaBartiromo), TWITTER (Nov. 15, 2020, 1:58 pm), https://twitter.com/MariaBartiromo/status/13280
49759731453952 (Ex. 21).
100
....
Bartiromo: I want to show this graphic of the swing states that were using Dominion
and this software, the Smartmatic software . . . And I have a graphic showing the
states where they stopped counting, which I thought was also strange, to stop
counting in the middle of the election night. One source says that the key point to
understand is that the Smartmatic system has a backdoor that . . . allows the votes
to be mirrored and monitored . . . Are you saying the states that use that software
did that?
...
Giuliani: [We] can prove that they did it in Michigan
[and] . . . we’re investigating the rest.
...
Bartiromo: Do you need to have [Dominion] hardware in your possession to prove
it? . . . Can you prove the case without the hardware or the software? . . . [Y]ou only
have a few weeks Rudy, because they want to certify the state elections early
December. . . . Do you believe you will be able to prosecute and be heard within
this time frame?
Bartiromo: According to public records, Dominion voting machines are used in
2,000 jurisdictions in 30 states. According to experts, if one site has a flaw, other
sites are likely to as well, which is why Texas rejected using Dominion software
three times, raising concerns that the system was not safe from fraudulent or
unauthorized manipulation. That’s troubling, given we already know that at least
two software glitches in Georgia and Michigan occurred on election night. Attorney
Sidney Powell is leading the charge against Dominion. And she says she has
enough evidence of fraud to launch a massive criminal investigation.
Bartiromo: Wow, so, Sidney, you feel that you will be able to prove this? . . . How
will you prove this, Sidney?
...
Powell: Well, I have got lots of ways to prove it, Maria, but I’m not going to tell on
national TV what all we have. I just can’t do that.
Bartiromo: OK, but you have a very time -- a small time frame here. The elections
are supposed to be certified in early December. Do you believe that you can present
this to the courts and be successful within this just couple of weeks?
...
Powell: We have even got evidence of some kickbacks, essentially.
...
101
Bartiromo: [Y]ou said that there may have been kickbacks to some people who
accepted the Dominion software. Tell me what you mean.
Powell: Well, it’s massive election fraud it’s going to undo the entire election
...
Bartiromo: Sidney, you say you have an affidavit from someone who knows how
this system works and was there with the planning of it. You believe you can prove
this in court?
Powell: Yes.
....
Bartiromo: Wow. This is explosive.
...
Bartiromo: [Y]ou [Congressman Jim Jordan] heard what Rudy Giuliani said earlier
in the program. He and Sidney Powell are investigating the Smartmatic software
and the Dominion voting machines because they do believe, and they say they have
evidence, that there were back doors and the votes were manipulated to turn Trump
votes into Biden votes. Where are we on that and what do you see in terms of the
outcome here of this investigation into voter fraud?
...
Jordan: Let the process play out . . . It seems to me we can spend four weeks on
getting to the bottom of this election.
...
Bartiromo: Now we have to go through the investigatory process.589
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used in the segment, such as
“this company has tried-and-true methods for fixing elections by calling a halt to the voting
when you’re running too far behind[]” and “[w]e have identified mathematically the exact
algorithm they used and planned to use from the beginning to modify the votes, in this case,
to make sure Biden won” makes factual assertions regarding Dominion. When viewed in the full
context of the overall communication expressed during the segment, a reasonable viewer would
understand that Statement is asserting facts regarding Dominion, not an opinion.
While Ms. Bartiromo poses some of the statements as hypothetical questions to Mr.
Giuliani or Ms. Powell, such as “[a]re you saying the states that use that software did that?” Ms.
Bartiromo accepts the explanations offered by Ms. Powell and Mr. Giuliani as facts by making
589
Fox Appendix, November 15, 2020, Sunday Morning Futures Tr. Ex. A10.
102
affirmative follow-up statements like “Right.” or “Wow. This is explosive.” A reasonable
viewer could understand these hypothetical questions as validations of actual events when
viewing the segment in its full context.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
H. NOVEMBER 16, 2020 LOU DOBBS TONIGHT BROADCAST:
1. Excerpt from Dominion:
Dobbs: President Trump’s legal team says potentially rigged voting machines
demand a national security investigation. They are pointing to Dominion Voting
Systems’ widely used ballot-scanning machines whose software is suspected of
inflating vote totals for Joe Biden. Dominion systems used in more than two dozen
states. Dominion also one of three companies accounting for almost 90% of the
voting equipment in the U.S. elections. . . . Dominion Voting Systems seems to
be figuring larger and larger in the interest of your legal team, and what is the latest?
Powell: Oh, definitely, Lou. I’ve just gotten some stunning evidence from a
firsthand witness, a high-ranking military officer, who was present when
Smartmatic was designed in a way that – and I’m going to just read to you some of
these statements, if you don’t mind, so I get them exactly right.
Dobbs: Sure.
Powell: From the affidavit: Designed in a way that the system could change the
vote of each voter without being detected. He wanted the software itself to function
in such a manner that if the voter were to place their thumbprint or fingerprint on a
scanner, then the thumbprint would be tied to a record of the voter’s name and
identity as having voted but that voter would not be tracked to the changed vote.
He made it clear that the system would have to be set up but not leave any evidence
of the changed vote for a specific voter, and that there would be no evidence to
show and nothing to contradict that the name or the fingerprint or thumbprint was
going with a changed vote. Smartmatic agreed to create such a system and produce
the software and hardware that accomplished the result for President Chávez. After
the Smartmatic electoral management system was put in place, he closely observed
several elections where the results were manipulated using the Smartmatic
software. . . . Persons controlling the vote tabulation computer had the ability to
change the reporting of votes by moving votes from one candidate to another by
using the Smartmatic software, and on and on it goes.
Dobbs: And Smartmatic, the relation –
Powell: Smartmatic owns Dominion.
103
Dobbs: Yes. . . . It’s – it is a deeply, deeply troubling election, as I said earlier, the
worst in this country’s history, bar none, and we have seen official investigative
and Justice Department officials slow to move, and it is infuriating to everyone.
Powell: No, we’ve seen willful blindness. They have adopted a position of willful
blindness to this massive corruption across the country, and the Smartmatic
software is in the DNA of every vote tabulating company’s software and system.
Dobbs: Yes, and it is more than just a willful blindness. This is people trying to
blind us to what is going on.590
2. Omitted Context Offered by Fox:
Dobbs: President Trump’s legal team says potentially rigged voting machines
demand a national security investigation. They are pointing to Dominion Voting
Systems’ widely-used ballot-scanning machines whose software is suspected of
inflating vote totals for Joe Biden.
...
Dobbs: The radical Dems, the RINOS, corporate left wing national media, of
course, quick to dismiss any concern about Dominion voting machines being
manipulated as a, quote-unquote, conspiracy theory.
...
Dobbs: Ronna [Republican National Committee Chair Ronna McDaniel], great to
have you with us. . . . Your reaction to what the Trump legal team and others are
discovering about Dominion, Smartmatic, and many of the other voting companies,
which almost seems like at least a very, very much in election terms, probable cause
for a complete and thorough investigation.
...
McDaniel: [W]e need to get to the bottom of these election issues and pursue every
single one, and that’s what the Trump legal team is doing.
Dobbs [to Powell]: Dominion . . . seems to be figuring larger and larger in the
interest of your legal team, and what is the latest?
...
Powell: I’ve just gotten some stunning evidence from a firsthand witness, a high
ranking military officer who was present when Smartmatic was designed[.]
...
590
Compl. ¶ 179, Lou Dobbs Tonight, FOX BUSINESS (Nov. 16, 2020), https://archive.org/details/FBC 20201116
220000 Lou Dobbs Tonight/start/504/ end/564; Lou Dobbs, Sidney Powell, FACEBOOK (Nov. 16, 2020),
https://www.facebook.com/115777632950/videos/1625726320970976; Lou Dobbs (@LouDobbs), Twitter (Nov.
16, 2020, 5:45 PM), https://twitter.com/LouDobbs/status/1328469195550576645 (Ex. 8).
104
Dobbs: I have now received word from a highly reliable source that the F.B.I. does
have an investigative team that is now looking into this election.
...
Dobbs: It is a deeply, deeply troubling election, as I said earlier, the worst in this
country’s history bar none. And we have seen official investigative and Justice
Department officials slow to move, and it is infuriating to everyone.
...
Dobbs: This is the time for the F.B.I. to get into this. This is the time for the court
system to work. This is the time for the President to prosecute this investigation and
get to the bottom of it[.]591
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used in the segment implies
to a reasonable viewer that the Statement asserts facts, such as Smartmatic’s ownership of
Dominion, “[Dobbs:] Smartmatic, the relation – [Powell:] Smartmatic owns Dominion. [Dobbs:]
Yes” and that the election fraud actually occurred, “This is people trying to blind us to what is
going on[]” and “I’ve just gotten some stunning evidence from a firsthand witness.” During the
segment, Mr. Dobbs dismisses the notion that the allegations are conspiracy theories, stating,
“[t]he radical Dems, the RINOS, corporate left wing national media, of course, quick to dismiss
any concern about Dominion voting machines being manipulated as a, quote-unquote,
conspiracy theory,” further indicating to the reasonable viewer that the statements are facts, not
opinions. When viewed in the full context of the overall communication expressed during the
segment, a reasonable viewer would understand that Statement is asserting facts regarding
Dominion, not an opinion.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
I. NOVEMBER 18, 2020 LOU DOBBS TONIGHT BROADCAST:
1. Excerpt from Dominion:
Dobbs: I want to share with the audience one of the affidavits that has been given
to us by an unidentified whistleblower, and it pertains to Dominion….I am alarmed
because of what is occurring in plain sight during this 2020 election for president
of United States. The circumstances and events are eerily reminiscent of what
happened with Smartmatic software electronically changing votes in the 2013
presidential election in Venezuela. What happened in the United States was that
the vote counting was abruptly stopped in five states using Dominion software. At
the time that vote counting was stopped, Donald Trump was significantly ahead in
591
Fox Appendix, November 16, 2020, Lou Dobbs Tonight Tr. Ex. A11.
105
the votes. Then during the wee hours of the morning, when there was no voting
occurring and the vote count reporting was offline, something significantly
changed. When the vote reporting resumed the very next morning, there was a very
pronounced change in voting in favor of the opposing candidate, Joe Biden. That
from a whistleblower who was present both in Venezuela in 2013 and in this
country as we were counting votes overnight on November 3rd. Your thoughts.
Giuliani: Our votes in 27, 28 states that are counted by Dominion. … And the
company counting it is not Dominion, it’s Smartmatic, which is a company that was
founded in 2005 in Venezuela for the specific purpose of fixing elections. That’s
their expertise, how to fix elections. They did it a number of times in Venezuela,
they did it in Argentina . . . Well, that’s the company that was counting and
calculating on election night. And they did all their old tricks. They stopped it,
they also switched votes around, subtly, maybe 10 per district so you don’t notice
it. They got caught in Antrim county, which is how we found out about them.
Dobbs: It’s outrageous.
Giuliani: We shouldn’t be using this company that was founded by Chávez to call
votes in America, because their specialty in Venezuela is cheating….And they’re
using a Venezuelan company as the vote counter, which is known for changing
votes.592
2. Omitted Context Offered by Fox:
Dobbs: All of our guests on this evening’s broadcast will be taking up President
Trump’s fight for a free and fair election. President Trump’s attorney, Rudy
Giuliani, among our guests.
...
Dobbs: Two of our guests tonight have filed sworn affidavits charging election
fraud in swing state elections. Garland Favorito says invalid ballots were
counted all across Georgia, and Patrick Colbeck alleges Michigan Democrats were
able to access a digital back door in the Dominion Voting Software that is the focus
of so many allegations and charges across the country.
Dobbs: I want to share with the audience one of the affidavits that has been given
to us by an unidentified whistleblower, and it pertains to Dominion. [He then
read from the affidavit, which had been filed in federal court in Georgia the day
before, and which Powell had read on Lou Dobbs Tonight two days earlier. [Lou
592
Compl. ¶ 179, Rudy Giuliani Returns to Court to Argue Trump Campaign’s Election Case, FOX BUSINESS (Nov.
18, 2020), https://video.foxbusiness.com/v/6210778333001?playlist_id=933116636001#sp=show-clips; Lou Dobbs
(@LouDobbs), TWITTER (Nov. 18, 2020, 5:35 PM), https://twitter.com/LouDobbs/status/1329191588216639493;
Lou Dobbs (@LouDobbs), TWITTER (Nov. 18, 2020, 4:45 PM),
https://twitter.com/LouDobbs/status/1329178820302278668; Lou Dobbs, Rudy Giuliani, FACEBOOK (Nov. 18,
2020), https://www facebook.com/watch/?v=293258 965242628 (Ex. 22).
106
Dobbs Tonight Tr. 5]; Dkt.6-14 ¶26, Wood v. Raffensperger, No. 1:20-cv-04651
(N.D. Ga. Nov. 17, 2020).]
(Portions of the alleged affidavit were presented during the segment.)
Dobbs: “That, from a whistleblower who was present both in Venezuela in 2013
and in this country as we were counting votes overnight on November 3rd. [To
Giuliani] Your thoughts?
Giuliani: Well, Lou, I don’t know if people can appreciate this, but I think when
they do, they’re going to be outraged. Our votes in 27 or 28 states that are counted
by Dominion and calculated and analyzed, they’re sent outside the United States.
and they’re not sent to Canada, they’re sent to Germany and Spain.
...
Dobbs: It’s outrageous[.]593
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
593
Fox Appendix, November 18, 2020, Lou Dobbs Tonight Tr. Ex. A14.
107
an inference to a reasonable viewer that it is factual. The language used in the segment, such as,
“[o]ur votes in 27 or 28 states that are counted by Dominion and calculated and analyzed,
they’re sent outside the United States[] and they’re not sent to Canada, they’re sent to
Germany and Spain” makes a factual assertion about Dominion. Additionally, during the
segment, Mr. Dobbs states that he would like to “share with the audience” an affidavit from an
alleged whistleblower who claims to have witnessed Dominion’s machines allegedly changing
the vote count overnight to favor Biden, which a reasonable viewer would understand this as Mr.
Dobbs presenting evidence of the underlying news. Mr. Dobbs also notes that the whistleblower
who penned the affidavit was present in both Venezuela in 2013 and in the US during election
day, indicating the authenticity of the whistleblower’s claims. Mr. Dobbs, in response to Mr.
Giuliani’s claims that Dominion “did all their old tricks” and “switched votes around,”
exclaimed, “[i]ts outrageous[,]” which a reasonable viewer would see as affirmation of the
claims. When viewed in the full context of the overall communication expressed during the
segment, a reasonable viewer would understand that Statement is asserting facts regarding
Dominion, not an opinion.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
J. NOVEMBER 19, 2020 LOU DOBBS TONIGHT BROADCAST:
1. Excerpt from Dominion:
Dobbs: Another issue at the center of today’s news conference, the use of
Dominion voting machines and Smartmatic software. Defense attorney Sidney
Powell cited a whistleblower’s stunning affidavit. It says Smartmatic’s technology
was used to rig elections in Venezuela. It is now in the, quote, “DNA of every vote
tabulating company software and system.” Smartmatic and Dominion deny those
charges, but Sidney Powell argues that algorithms in the Smartmatic software were
used to change results in the presidential election. . . . One of the team members,
Sidney Powell, among our guests here tonight. She will be providing more details
on how Dominion voting machines and Smartmatic software were used to help Joe
Biden. . . . Let’s turn to Smartmatic and Dominion. Are they or are they not linked?
Powell: Oh, they’re definitely linked. I would call them inextricably intertwined.
They have the same history from their inception. I’m sure they’re trying to distance
themselves from each other, but the fact is that the Dominion machines run the
Smartmatic software or parts of the key code of it, and that is what allows them to
manipulate the votes in any way the operators choose to manipulate them; and every
time there was a glitch, they called it, or connection to the internet, they also
violated state laws that required the machines to be certified and nothing to be
changed before the votes.
Dobbs: And it’s the presumption then that they had the records on those servers of
all of the votes that were processed by Dominion or Smartmatic?
108
Powell: Yes. … It could have run an automatic algorithm against all the votes,
which we believe is what happened originally and then the machines had to stop or
the counting had to stop in multiple places because President Trump’s lead was so
great at that point they had to stop the counting and come in and backfill the votes
they needed to change the result. . . . There’s thousands of people in federal prisons
on far less evidence of criminal conduct than we have already against the
Smartmatic and Dominion Systems companies.
Dobbs: We have just watched, to everyone in this audience tonight, our election is
run by companies, the ownership of which we don’t know.594
2. Omitted Context Offered by Fox:
Dobbs: President Trump’s legal team today saying they have the evidence to swing
the election to President Trump. [The broadcast then cut to a video of the news
conference in which Giuliani provides an overview of the Trump Campaign’s key
claims and legal strategies.]
Dobbs: Another issue at the center of today’s news conference, the use of Dominion
voting machines and Smartmatic software. Defense attorney Sidney Powell cited a
whistleblower’s stunning affidavit . . . It says Smartmatic’s technology was used to
rig elections in Venezuela.
...
Dobbs: Smartmatic and Dominion deny those charges. But Sidney Powell argues
that algorithms in the Smartmatic software were used to change results in the
presidential election. [The broadcast then cut back to the news conference, where
Powell made a series of allegations about backdoors and hacking and flipping votes
with algorithms.]
Dobbs: We’ll have much more on today’s powerful news conference and the
powerful charges put forth by the President’s legal team. One of the team members,
Sidney Powell, among our guests here tonight. She will be providing more details
on how Dominion vote machines and Smartmatic software were used to help Joe
Biden.
...
Dobbs: Breaking news now, Dominion Voting Systems today once again distanced
itself from Smartmatic saying, “Dominion is an entirely separate company and
594
Compl. ¶ 179, Lou Dobbs Tonight, FOX NEWS (Nov. 19, 2020),
https://archive.org/details/FBC_20201119_220000_Lou_Dobbs_Tonight/; Trump’s Legal Team Still in Evidence
Collection Process or Election Challenges, FOX BUSINESS (Nov. 19, 2020), https://video foxbusiness.com/
v/6211050624001#sp=show-clips; Lou Dobbs, Sidney Powell, FACEBOOK (Nov. 19, 2020),
https://www.facebook.com/watch/?v=880692419336775; Lou Dobbs (@LouDobbs), TWITTER (Nov. 19, 2020, 5:32
PM), https://twitter.com/LouDobbs/status/1329553227046588417; Lou Dobbs (@LouDobbs), TWITTER (Nov. 19,
2020, 4:55 PM), https://twitter.com/LouDobbs/status/1329543810867671044; Lou Dobbs Tonight
(@loudobbstonight), INSTAGRAM (Nov. 19, 2020), https://www.instagram.com/p/CHylMiTBGIs/ (Ex. 10)
109
fierce competitor to Smartmatic,” end quote. “Dominion and Smartmatic do not
collaborate in any way and have no affiliate relationship or financial ties.”
(Portions of Dominion’s “Setting the record straight” emails were shown during the
segment.)
Dobbs: Yet in a 2009 lawsuit in which Smartmatic sued Dominion, a very clear
relationship between the two companies was laid out. Quote, “The license
agreement granted Smartmatic rights to certain patents and patent applications that
Dominion owned or controlled and to all know-how, trade secrets, methodologies,
and other technical information owned or possessed by Dominion. The license
agreement contains a noncompetition provision. This provision limits Smartmatic’s
rights to develop market or sell products that embody the license technology.” So
despite what appears to have been, at least, a relationship and it is all but impossible
to find any record of either proving or disproving a relationship, because the two
firms are privately owned, it becomes a thorny matter, at the very least.
Dobbs: [To Powell] Let’s turn to Smartmatic and Dominion. Are they or are they
not linked?
...
110
Dobbs: [W]hat is the next steps for the legal team and when do you believe you
will be prepared to come forward with hard evidence establishing the basis for a
court to overturn elections or at least results of those elections in a number of
battleground states?595
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used in the segment, such as
“[Powell] will be providing more details on how Dominion voting machines and Smartmatic
software were used to help Joe Biden[;]” “[w]e have just watched, to everyone in this audience
tonight, our election is run by companies, the ownership of which we don’t know[;]” and
“Dominion machines run the Smartmatic software or parts of the key code of it, and that is
what allows them to manipulate the votes in any way the operators choose to manipulate
them” make factual assertions regarding Dominion. While Dobbs does present Dominion’s
disavowal of the allegations, he immediately casts doubt on Dominion’s statements by saying,
“[y]et in a 2009 lawsuit in which Smartmatic sued Dominion, a very clear relationship between
the two companies was laid out.” When viewed in the full context of the overall communication
expressed during the segment, a reasonable viewer would understand that Statement is asserting
facts regarding Dominion, not an opinion.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
K. NOVEMBER 21, 2020 JUSTICE W/ JUDGE JEANINE BROADCAST:
1. Excerpt from Dominion:
Pirro: The president’s lawyers alleging a company called Dominion, which they
say started in Venezuela with Cuban money and with the assistance of Smartmatic
software, a backdoor is capable of flipping votes. . . . Now, why was there an
overnight popping of the vote tabulation that cannot be explained for Biden?596
2. Omitted Context Offered by Fox:
Pirro: And now just over two weeks, the President's lawyers come forward alleging
an organized criminal enterprise, a conspiracy by Democrats, especially in cities
controlled and corrupted by Democrats. The President’s lawyers alleging a
company called Dominion, which they say started in Venezuela with Cuban money
and with the assistance of Smartmatic software, a back door is capable of flipping
595
Fox Appendix, November 19, 2020, Lou Dobbs Tonight transcript. Ex. A18.
596
Compl. ¶ 179, Judge Jeanine Pirro, Opening Statement (Nov. 21, 2020),
https://www.facebook.com/watch/?v=3424348634350374; Jeanine Pirro (@JudgeJeanine), TWITTER (Nov. 21,
2020, 9:15 PM), https://twitter.com/JudgeJeanine/status/1330333931028115456; Jeanine Pirro (@JudgeJeanine),
TWITTER (Nov. 21, 2020, 9:16 PM), https://twitter.com/JudgeJeanine/status/1330334182732484611 (Ex. 3).
111
votes. And the President’s lawyers alleging that American votes in a presidential
election are actually counted in a foreign country. These are serious allegations, but
the media has no interest in any of this.
Pirro: Now, the President’s lawyers offered evidence by way of affidavits, which I
told you last Saturday as a Judge from a legal perspective, are sworn statements of
individuals signed under penalty of perjury, meaning they know they face the
penalty of prosecution and five years if they lie. These sworn statements are factual
allegations are part of virtually every lawsuit. It’s how you start a case. The
President’s lawyers have indicated that they have 250 such affidavits under oath,
people ready to testify. People ready to face the hate that the left has inflicted upon
all of us from day one.
Pirro: I ask you, what is the problem in seeking to confirm that this election had no
irregularities?
...
Pirro: These are the questions that aren’t going away. For the sake of our Republic,
we have an obligation to get honest and truthful answers, in fact, demand them.
Stay tuned.
Pirro: Okay, but Lin, a Federal Judge in Atlanta rejected the lawsuit that this last
lawsuit is associated with and this affidavit, District Judge Steven Grimberg, a
Trump appointee said he found no evidence of irregularities that affected more than
a nominal number of votes.
...
Pirro: Well, let me ask you this. Lin, when you say that they were destroying or
tried to destroy the ballots. Do you have evidence of that?
Wood: I have video evidence, I posted on my Twitter account. I have photographic
evidence. I’ve posted on my Twitter account. There’s no question that they were at
the Cobb County Elections Office on Jim R. Miller Park with a shredder truck.
We’ve got video evidence of them shredding the documents putting them in bins,
trying to drive off.
...
Pirro: [W]ell, people can certainly go to your Twitter account and check that out
themselves.597
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
597
Fox Appendix, November 21, 2020, Justine with Judge Jeanine Tr. Ex. A22.
112
an inference to a reasonable viewer that it is factual. The language used in the segment, such as
“[n]ow, why was there an overnight popping of the vote tabulation that cannot be explained
for Biden?” and “[t]he President’s lawyers offered evidence by way of affidavits, which I told
you last Saturday as a Judge from a legal perspective, are sworn statements of individuals
signed under penalty of perjury, meaning they know they face the penalty of prosecution and
five years if they lie. These sworn statements are factual allegations are part of virtually every
lawsuit[]” makes factual assertions regarding Dominion. Pirro implies to her viewers that, as a
former judge, the information contained within the affidavits can be trusted as facts. A
reasonable viewer would find that Pirro, relying on her credentials, was making assertions of fact
by emphasizing the authenticity of an affidavit and the “factual allegations” contained within.
When viewed in the full context of the overall communication expressed during the segment, a
reasonable viewer would understand that Statement is asserting facts regarding Dominion, not an
opinion.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
L. NOVEMBER 24, 2020 LOU DOBBS TONIGHT BROADCAST:
1. Excerpt from Dominion:
Powell: [T]here’s no doubt that the software was created and used in Venezuela to
control the elections and make sure that Hugo Chávez was always reelected as the
dictator of Venezuela in what appeared to be, quote, free and fair elections, end
quote, but they were manipulated by the software used in the Dominion machines
– and used by other machines in the United States, frankly, and we are just
continuing to be inundated by evidence of all the frauds here
Dobbs: I think many Americans have given no thought to electoral fraud that would
be perpetrated through electronic voting; that is, these machines, these electronic
voting companies, including Dominion, prominently Dominion, at least in the
suspicions of a lot of Americans.598
2. Omitted Context Offered by Fox:
Dobbs: Let’s start with the ownership of these voting firms. I know you’re focusing
on that part of the electoral fraud that’s been perpetrated this year in this election.
Why don’t we know who they are?
...
598
Compl. ¶ 179, Lou Dobbs Tonight, FOX BUSINESS (Nov. 24, 2020), https://archive.org/details/FBC 20201124
220000 Lou Dobbs Tonight/start/108 0/end/1140; Lou Dobbs (@LouDobbs), TWITTER (Nov. 24, 2020, 5:37 PM),
https://twitter.com/LouDobbs/status/1331366325629968386; Lou Dobbs, Sidney Powell Breaking News,
FACEBOOK (Nov. 24, 2020), https://www facebook.com/115777632950/videos/381418186402867; Lou Dobbs
Tonight (@loudobbstonight), INSTAGRAM (Nov. 24, 2020), https://www.instagram.com/p/CH_ZbqTBHSE/ (Ex.
13).
113
Dobbs: I think many Americans have given no thought to electoral fraud that would
be perpetrated through electronic voting; that is, these machines, these electronic
voting companies including Dominion, prominently Dominion at least in the
suspicions of a lot of Americans.
...
Dobbs: Well, you have promised a Kraken will be unleashed. We are – were
expecting perhaps your suit would be filed yesterday or today. When shall we
expect your lawsuit?
Powell: Well, I think no later than tomorrow. It’s just going to be, it’s a massive
document. And it’s going to have a lot of exhibits.
...
Dobbs: Your thoughts now about what will be the impact and [can] it be adjudicated
in such a way as to meet all of the deadlines that are forced upon you? That is,
December 8th and December 14th. Give us your sense of the timing and the urgency
of getting this to resolution.599
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used in the segment, such as:
“[l]et’s start with the ownership of these voting firms. I know you’re focusing on that part of the
electoral fraud that’s been perpetrated this year in this election. Why don’t we know who
they are?[;]” “I think many Americans have given no thought to electoral fraud that would be
perpetrated through electronic voting; that is, these machines, these electronic voting
companies, including Dominion, prominently Dominion, at least in the suspicions of a lot of
Americans[;]” and “they were manipulated by the software used in the Dominion machines
– and used by other machines in the United States, frankly, and we are just continuing to be
inundated by evidence of all the frauds here” assert facts regarding Dominion’s participation
in electoral fraud. When viewed in the full context of the overall communication expressed
during the segment, a reasonable viewer would understand that Statement is asserting facts
regarding Dominion, not an opinion.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
M. NOVEMBER 30, 2020 LOU DOBBS TONIGHT BROADCAST:
1. Excerpt from Dominion:
Powell: [W]e need, frankly, to stop the election that’s supposed to happen in
January because all the machines are infected with the software code that allows
599
Fox Appendix, November 24, 2020, Lou Dobbs Tonight Tr. Ex. A26.
114
Dominion to shave votes for one candidate and give them to another, and other
features that do the same thing. . . . Different states shaved different amounts of
votes or the system was set up to shave and flip different votes in different states.
Some people were targeted as individual candidates. It’s really the most massive
and historical egregious fraud the world has ever seen.
Dobbs: You know, people don’t go to jail for their attitude, but in the case of the
Secretary of State and the Governor of Georgia right now, one would be tempted
to prosecute based on their conduct so far. What is going on with those two
individuals?
Powell: [I]t seems that there were significant benefits for both Governor Kemp and
perhaps Mr. Raffensperger also, and maybe others on their team, for deciding at the
last minute to rush in a contract for Dominion for $107 million for the state.
Dobbs: Now, do we know – you know, I just can’t – I think most Americans right
now cannot believe what we are witnessing in this election. 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.
Powell: Dominion and its minions and other state officials everywhere are
apparently out there trying to destroy everything they can get to before we can seize
it . . .
Dobbs: And as I said at the outset of the broadcast, Sidney, this is no longer about
just voter fraud or electoral fraud, this is something much bigger and this president
has to take, I believe, drastic action, dramatic action, to make certain that the
integrity of this election is understood, or lack of it, the crimes that have been
committed against him and the American people.600
2. Omitted Context Offered by Fox:
Dobbs: As Steve just reported, Dominion voting machines in Georgia are at the
center of a major Republican lawsuit. Attorney Sidney Powell is seeking a forensic
audit of the Dominion voting machines in Cobb, Gwinnett and Cherokee counties.
A George W. Bush-appointed judge banned those machines from being wiped or
in any way altered for the next 10 days, and, today, he scheduled a hearing in the
case to be heard this Friday.
600
Compl. ¶ 179, Lou Dobbs, Sidney Powell, FACEBOOK (Nov. 30, 2020),
https://www.facebook.com/watch/?v=830918901055891; Lou Dobbs (@LouDobbs), TWITTER (Nov. 30, 2020),
6:03 PM, https://twitter.com/LouDobbs/status/1333547266032984064; Lou Dobbs Tonight (@loudobbstonight),
INSTAGRAM (Nov. 30, 2020), https://www.instagram.com/p/CIO6-KVBKb8/ (Ex. 15).
115
Dobbs: President Trump’s legal team led by Rudy Giuliani in Arizona today
speaking before state legislators there, urging them to investigate electoral fraud.
This coming the same day that Arizona certified its election for Joe Biden.
...
Dobbs: Giuliani also called Colonel Phil Waldron, as a cybersecurity expert witness
in that hearing, and he provided chilling details about Dominion Voting Systems.
Waldron telling the panel that voting was less secure than a Venmo account, a
financial account, and that on Election Day Dominion machines were connected to
the internet and absolutely susceptible to cyber attacks.
...
Dobbs: This audience, most of America, wants to know where we are in this fight
for the White House?
Powell: Well, we are making great progress, Lou. We have one case in the court in
Georgia that’s getting ready to go to the 11th Circuit. We’re going to ask for
emergency review of that where we sought to impound all the voting machines in
Georgia.
...
Powell: And guess what happened yesterday while we were in the process of trying
to get the state to respond for our request of the restraining order? Someone went
down to the Fulton Center where the votes and Dominion machines were, claimed
there was a software glitch and they had to replace the software, and it seems that
they removed the server.
Dobbs: Unbelievable. Unbelievable. Do we know where the server is?
Powell: No, we don’t right now.
Dobbs: You know, people don’t go to jail for their attitude, but in the case of the
Secretary of State and the Governor of Georgia right now, one would be tempted
to prosecute based on their conduct so far. What is going on with those two
individuals?
...
Powell: We’ve gotten tips from different people that we haven’t been able to verify
completely yet, but it seems that there were significant benefits for both Governor
Kemp and perhaps Mr. Raffensperger also and maybe others on their team, for
deciding at the last minute to rush in a contract for Dominion for $107 million for
the state.
...
Dobbs: We have across almost every state, whether it’s Dominion, EBS, whatever
the company – voting machine company is -- no one knows their ownership, has
116
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 super power. We look like a complete nation of
fools, and we’re supposed to be meeting constitutional deadlines on December 8th,
December 14th? Are you kidding me? This thing should be shut down right now
and people understand that this will not be tolerated by the American people.
...
Dobbs: And as I said at the outset of the broadcast, Sidney, this is no longer about
just voter fraud or electoral fraud. This is something much bigger. And this
president has to take, I believe, drastic action, dramatic action to make certain that
the integrity of this election is understood, or lack of it, the crimes that have been
committed against him and the American people. And if the Justice Department
doesn’t want to do it, if the FBI cannot do it, then we have to find other resources
within the federal government. We’ve got to rise above this, because the nation
itself -- this is an assault on the core of a democracy, any democracy, our ability to
cast a secret ballot.601
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used in the segment, such as
“all the machines are infected with the software code that allows Dominion to shave votes for
one candidate and give them to another[,]” and “Dominion . . . 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[]” makes factual assertions regarding Dominion. When
viewed in the full context of the overall communication expressed during the segment, a
reasonable viewer would understand that Statement is asserting facts regarding Dominion, not an
opinion.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
N. NOVEMBER 30, 2020 HANNITY BROADCAST:
1. Excerpt from Dominion:
Powell: The machine ran an algorithm that shaved votes from Trump and awarded
them to Biden. They used the machines to trash large batches of votes that should
have been awarded to President Trump. And they used a machine to inject and add
massive quantities of votes for Mr. Biden.602
601
Fox Appendix, November 30, 2020, Lou Dobbs Tonight Tr. Ex. A29.
602
Compl. ¶ 179, Hannity, FOX NEWS (Nov. 30, 2020),
https://archive.org/details/FOXNEWSW_20201201_020000_Hannity/start/1939/end/1999 (Ex. 14).
117
2. Omitted Context Offered by Fox:
Hannity: We start, breaking tonight, we have major new developments out of
Georgia, Arizona. the Trump campaign continues to investigate election
irregularities, allegations of voter fraud.
Hannity: Now those same hacks are demanding that we, the American people, 74
million strong, just fall in line and accept their new standards and accept election
results without investigating what are valid affidavits and claims by fellow
Americans, citizens under the threat of perjury, of fraud. This is a bad joke.
...
Hannity: Let me ask you about -- it appeared publicly to be the split, that you were
part of the attorneys for Trump on the election investigation fraud issue. And you
said you were never part of that their legal team, although you did work with them
in some regard.
...
Hannity: And I ask you today, you said to me that there were people watching an
internet connection in real time that they can’t speak publicly and haven’t signed
affidavits to that. Why?
Powell: Well, there are a number of reasons. Some are within the government. And
some are possibly in different roles that require confidentiality. And they’re not in
a position where they can come forward without certain protections in place. And
that’s something that the government really needs to give them if they want to get
to the truth of all the matters with which we’re gathering more evidence every day.
...
Hannity: So, we really can’t hear from them -- and they can’t sign an affidavit until
they get these protections. And my question is to you, you know, in a lot of ways,
has anybody forensically examined these machines since the election?
...
Hannity: I thought Democrats told us we like whistleblowers. You’re saying that
these people can’t talk because they’re going to use [sic] their job? I would think
that they get protection.603
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used in the segment, such as
“[t]he machine ran an algorithm that shaved votes from Trump and awarded them to
Biden. They used the machines to trash large batches of votes that should have been
603
Fox Appendix, November 30, 2020, Hannity Tr. Ex. A28.
118
awarded to President Trump. And they used a machine to inject and add massive
quantities of votes for Mr. Biden[]” assert facts regarding Dominion’s voting machines, and its
ability to alter the vote count for the candidates with an “algorithm.” When viewed in the full
context of the overall communication expressed during the segment, a reasonable viewer would
understand that Statement is asserting facts regarding Dominion, not an opinion.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
O. DECEMBER 4, 2020 LOU DOBBS TONIGHT BROADCAST:
1. Excerpt from Dominion:
Dobbs: At the center of it all, Dominion Voting Systems. Are they the culprit here?
Not the only culprit, but are they the principal culprit? . . . But concomitantly,
Dominion Voting Systems, with – you have described it, with algorithms in which
– which were designed to be inaccurate rather than to be a secure system.604
2. Omitted context offered by Fox:
Dobbs: Attorneys for President Trump also today ramping up their legal challenge
against Georgia’s election results. A new filing claiming Georgia’s election laws
were violated thousands of times, rendering the outcome invalid.
...
Dobbs: Your testimony has been fascinating before each of these state legislatures,
and I believe that you have been absolutely, I’m going to say persuasive because
you’ve been so informative. At the center of it all, Dominion Voting Systems. Are
they the culprit here? Not the only culprit, but are they the principal culprit?
...
Dobbs: Dominion Voting Systems with – you have described it with algorithms
which were designed to be inaccurate rather than to be a secure system. Give us
your sense of who is driving all of this.605
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used in the segment, such as
“[a]t the center of it all, Dominion Voting Systems. Are they the culprit here? Not the only
604
Compl. ¶ 179, Cybersecurity expert: There Are 'Multiple Ways' to Potentially Interfere with Elections, FOX
BUSINESS (Dec. 4, 2020), https://video.foxbusiness.com/v/621428355200l#sp=show-clips; Lou Dobbs, COL
WALDRON, FACEBOOK (Dec. 4, 2020), https://www facebook.com/watch/?v=92l0370684303; Lou Dobbs Tonight
(@loudobbstonight), INSTAGRAM (Dec. 4, 2020), https://www.instagram.com/p/CIZifHZhQFx/ (Ex. 12).
605
Fox Appendix, December 4, 2020, Lou Dobbs Tonight Tr. Ex. A30.
119
culprit, but are they the principal culprit?” and “Dominion Voting Systems with – you have
described it with algorithms which were designed to be inaccurate rather than to be a
secure system. Give us your sense of who is driving all of this” make factual assertions as to
Dominion’s “principal” role in the alleged election fraud, and its software which allegedly
contained algorithms that were “designed to be inaccurate.” While portions of the Statement are
couched as questions, a reasonable viewer would view the rhetorical questions as statements of
fact, not actual questions posed to a respondent. When viewed in the full context of the overall
communication expressed during the segment, a reasonable viewer would understand that
Statement is asserting facts regarding Dominion, not an opinion.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
P. FOX AND DOBBS PUBLISHED A DECEMBER 10, 2020 STATEMENT TO THE @LOUDOBBS
TWITTER ACCOUNT:
1. Excerpt from Dominion:
The 2020 Election is a cyber Pearl Harbor: The leftwing establishment have aligned
their forces to overthrow the United States government #MAGA #AmericaFirst
#Dobbs.
Fox embedded in the tweet a typewritten document with no other markings or attributions
that read:
We have a warning to the mainstream media: you have purposely sided with the
forces that are trying to overthrow the US system. These four people and their
collaborators executed an electoral 9-11 against the United States, with the
cooperation and collusion of the media and the Democrat Party . . . It is a cyber
Pearl Harbor. We have identities, roles, and background of Dominion. Smartmatic
people. This will turn into a massive RICO filing. It is Smartmatic, Dominion
Voting Systems, Sequoia, SGO. . . . We have technical presentations that prove
there is an embedded controller in every Dominion machine. . . . We have the
architecture and systems, that show how the machines can be controlled from
external sources, via the internet, in violation of voting standards, Federal law, state
laws, and contracts.606
2. Omitted Context Offered by Fox:
None offered by Fox.
606
Compl. ¶ 179, Lou Dobbs (@LouDobbs), TWITTER (Dec. 10, 2020, 4:56 PM),
https://twitter.com/LouDobbs/status/1337154346795012098 (Ex. 16).
120
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used in the tweet, such as
“[t]he 2020 Election is a cyber Pearl Harbor: The leftwing establishment have aligned their
forces to overthrow the United States government” and “We have technical presentations that
prove there is an embedded controller in every Dominion machine. . . . We have the
architecture and systems, that show how the machines can be controlled from external
sources . . . ” make factual assertions regarding Dominion’s role in the “cyber Pearl Harbor” and
that Dominion machines can be controlled by third parties. When viewed in the full context of
the overall communication expressed during the segment, a reasonable viewer would understand
that Statement is asserting facts regarding Dominion, not an opinion.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
Q. DECEMBER 10, 2020 LOU DOBBS TONIGHT BROADCAST:
1. Excerpt from Dominion:
Dobbs: You say these four individuals [Jorge Rodriguez, Khalil Majzoub, Gustavo
Reyes-Zumeta, Antonio Mugica] led the effort to rig this election. How did they do
it?
Powell: Well, Lou, they designed and developed the Smartmatic and Dominion
programs and machines, that include a controller module that allows people to log
in and manipulate the vote, even as it’s happening. We’re finding more and more
evidence of this. 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. . . . [T]he entire system was created for the benefit of Venezuela and Hugo
Chávez to rig elections to make sure he continued winning. And then it was passed
on to Mr. Maduro to do the same. And we know it was exported to other countries
by virtue of some of the Dominion executives that proceeded to go about and
essentially sell elections to the highest bidder. . . . It is a very concerning and
troubling and illegal web of conduct that all of which focused on rigging the
election in this country. And we are seeing the results in multiple states where
we’re now identifying specific votes flipped, like in a couple of Georgia counties.
Dobbs: We’re going to examine in some detail the – the reasons for what is
apparently a broadly coordinated effort to – to actually bring down this President
by ending his second term before it could begin. . . . [I]t’s outrageous that we have
an Attorney General, Sidney, who has said that he sees no sign of – of any
significant fraud that would overturn the election. We had a head of the cyber
121
intelligence unit for the Department of Homeland Security who is suing some
people, apparently, for saying that his report basically, was – it was nonsense when
he declared it was the most secure election in the country’s history. What are we
dealing with here, and how can we get to this, if we have a – an Attorney General
who has apparently lost both his nerve and his commitment to his oath of office,
and to the country; we have an FBI director who seems to be as politically corrupt
as anyone who preceded him, and a Homeland Security department that doesn’t
know what the hell it’s talking about and is spending more time playing politics, at
least as it applies to Mr. Krebs, than securing the nation.
Powell: President Trump won so many votes, he blew up their algorithm. The
American people blew up the algorithm they created before the election to shave
votes from Biden and give them to Trump. And we’re now seeing direct evidence
of that happening in – in multiple counties and multiple states, and we know it
happened across the country. …
Dobbs: Let me – let me make you an offer very straightforwardly: We will gladly
put forward your evidence that supports your claim that this was a Cyber Pearl
Harbor. We have tremendous evidence already but – of fraud in this election, but
I will be glad to put forward on this broadcast whatever evidence you have, and
we’ll be glad to do it immediately.
Powell: Awesome.
Dobbs: We’ll work overnight. We will – we will take up whatever air we’re
permitted beyond this broadcast, but we have to get to the bottom of this.
Dobbs: I mean the governor and the state – Secretary of State have got to find, if
not the integrity, the – the primal fear of the voters in Georgia to stop what’s going
on and stop it now. . . . How much time do you need to get that evidence to this
broadcast and we’ll put it on the air?
Powell: I’ll get you more information that’s just stunning tonight.607
2. Omitted Context Offered by Fox:
Dobbs: Our first guest tonight has new information regarding electoral fraud in the
radical left’s efforts to steal an election, and she charges four individuals as authors
of what she calls a Pearl Harbor-style cyber attack on the 2020 presidential election.
There are four names that she highlights.
607
Compl. ¶ 179, Sidney Powell raises questions about security of voting machines, Fox Business (Dec. 10, 2020),
https://video.foxbusiness.com/v/6215520845001/#sp=show-clips; Lou Dobbs (@LouDobbs), TWITTER (Dec. 10,
2020, 5:51 PM), https://twitter.com/LouDobbs/status/1337168084541575171; Lou Dobbs (@LouDobbs), TWITTER
(Dec. 10, 2020, 5:52 PM), https://twitter.com/LouDobbs/status/1337168397398921217; Lou Dobbs, Sidney Powell,
FACEBOOK (Dec. 10, 2020), https://www facebook.com/watch/?v=681543625896199; Lou Dobbs Tonight
(@loudobbstonight), INSTAGRAM (Dec. 10, 2020), https://www.instagram.com/p/CioOkAqB6Bq/; Lou Dobbs
Tonight (@loudobbstonight), INSTAGRAM (Dec. 10, 2020), https://www.instagram.com/p/Cio02XjhDlM/ (Ex. 1).
122
...
Dobbs: Well, what is the evidence that you have compiled? How have you
constructed the architecture of this relationship among these four individuals?
...
Dobbs: What is the evidence that this former Communications Minister could reach
into the U.S. electoral system and raise the havoc and commit the fraud that
obviously we have witnessed in 2020?
...
Dobbs: We’re back now with Attorney Sidney Powell. She was describing a cyber-
Pearl Harbor in the 2020 election focusing on four names.
...
Dobbs: I would also like to put up this element from – from your investigation, if
we could have that full screen up so that we could all go through that with the
audience, because it’s important as we look at these four names. We’re talking
about very large, a very large foreign intrusion and interference in the election of
2020.
...
Dobbs: Give us – it’s outrageous that we have a – an Attorney General, Sidney,
who has said that he sees no sign of any significant fraud that would overturn the
election. We had a head of the cyber intelligence unit for the Department of
Homeland Security who’s suing some people, apparently, for saying that his report
basically was nonsense when he declared it was the most secure election in the
country’s history. What are we dealing with here and how can we get to this if we
have an Attorney General who has apparently lost both his nerve and his
commitment to his oath of office and to the country. We have an FBI director who
seems to be as politically corrupt as anyone who preceded him, and a Homeland
Security Department that doesn’t know what the hell it is talking about and is
spending more time playing politics – at least as it applies to Mr. Krebs – than
securing the nation.
...
Dobbs: Well, let me—let me make you an offer very straightforwardly: We will
gladly put forward your evidence that supports your claim that this was a cyber-
Pearl Harbor.
...
Dobbs: How much time do you need to get that evidence to this broadcast and we’ll
put it on the air.608
3. The Statement Asserts a Fact.
608
Fox Appendix, December 10, 2020, Lou Dobbs Tonight Tr.. Ex. A31.
123
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used in the segment, such as
“they designed and developed the Smartmatic and Dominion programs and machines, that
include a controller module that allows people to log in and manipulate the vote, even as it’s
happening[,]” “[w]e now have reams and reams of actual documents from Smartmatic and
Dominion, including evidence that they planned and executed all of this,” and “[w]e have
tremendous evidence already but – of fraud in this election” makes factual assertions which
indicate to a reasonable viewer that Dominion took part in “rigging” the election and flipping the
votes. When viewed in the full context of the overall communication expressed during the
segment, a reasonable viewer would understand that Statement is asserting facts regarding
Dominion, not an opinion.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
R. ON DECEMBER 10, 2020, FOX AND DOBBS PUBLISHED A STATEMENT TO THE
@LOUDOBBS TWITTER ACCOUNT:
1. Excerpt from Dominion:
Cyber Pearl Harbor: @SigneyPowell1 reveals groundbreaking new evidence
indicating our Presidential election came under massive cyber-attack orchestrated
with the help of Dominion, Smartmatic, and foreign adversaries. #Maga
#AmericaFirst #Dobbs.609
609
Compl. ¶ 179, Lou Dobbs (@LouDobbs), TWITTER (Dec. 10, 2020, 5:52 PM),
https://twitter.com/LouDobbs/status/1337168397398921217 (Ex. 1).
124
2. Omitted context offered by Fox:
@LouDobbs Twitter December 10, 2020, 4:47 PM:
The Battle for the White House: Join Lou at 5 & 7 PM/ET as several states and
@realDonalTrump ask to join Texas’ Supreme Court case for election integrity
@SidneyPowell1 @OGJesseMorgan @pjcolbeck @IAmPapaJohn #MAGA
#AmericaFirst #Dobbs
@LouDobbs Twitter December 10, 2020, 4:55 PM:
Exposing Dominion: @SidneyPowell1 joins Lou at 5pm ET to share new
information that could have massive consequences in the Battle for the White
House.
@LouDobbs Twitter December 10, 2020, 4:56 PM:
The 2020 Election is a cyber Pearl Harbor: The leftwing establishment have aligned
their forces to overthrow the United States government #MAGA #AmericaFirst
#Dobbs610
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used in the tweets, such as
“[Powell] reveals groundbreaking new evidence indicating our Presidential election came
under massive cyber-attack orchestrated with the help of Dominion, Smartmatic, and foreign
adversaries” and “Exposing Dominion: [Powell] joins Lou . . . to share new information that
could have massive consequences” make factual statements which a reasonable viewer would
interpret as assertions of fact, not as opinions of either Dobbs or Powell. When viewed in the
610
Fox Appendix, December 10, 2020, @LouDobbs tweet. D.I. No. 1 ¶179(p).
125
full context of the overall communication expressed during the segment, a reasonable viewer
would understand that Statement is asserting facts regarding Dominion, not an opinion.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
S. DECEMBER 12, 2020 FOX & FRIENDS BROADCAST:
1. Excerpt from Dominion:
Giuliani: [W]e have a machine, the Dominion machine … was developed to steal
elections, and being used in the states that are involved.611
2. Omitted context offered by Fox:
Hegseth: He asked that gentleman what’s next. We’ll ask the same question of you.
In the legal challenge, what’s next?
Giuliani: Well, what’s next now is to take each one of those complaints that were
against different states, to break them down into individual complaints, and over
the next two days, bring them in those states where we would have standing;
namely, in Michigan, Georgia, Pennsylvania, Nevada, Arizona. Wisconsin, we
already have an ongoing case, so we may -- may or may not supplement. It’s going
to be heard today. So, basically, we’ll take the advice of the Supreme Court. The
Supreme Court says, I think incorrectly, that the State of Texas doesn’t have
standing. But, certainly, the President of the United States has standing. Certainly,
the electors, like that gentleman that spoke to you, has standing. So we will be
bringing those cases in their names in the states in which we were cheated. Georgia
is probably the most dramatic example of cheating because it was done live on tape.
You know, I say that that tape is going to live after this election like the Zapruder
tape with the Kennedy assassination. Twenty years from now when they look back
at this election, they’re going to show that tape, and whatever happens with the
result of this election, they’re going to say, oh, my goodness, it really was stolen,
because you can see - you can see 30,000 votes being stolen right in front of your
eyes. And how the governor of Georgia, the lieutenant governor, can ignore that is
pretty close to a crime. I mean, the people of Georgia have every right to be
outraged. Their state was stolen on television. Now, we get to -- we get to Detroit
and we have a truck that pulled in at 4:30 in the morning with 100,000 votes. And
we have a machine, the Dominion machine, that’s as filled with holes as swiss
cheese and was developed to steal elections and being used in the states that are
involved. So there’s a lot that’s going to come out here over the next month or so.
And you know – you know the shame of it? If this all comes out six months from
now the way the Biden thing is now coming out – you know, six months ago, eight
611
Compl. ¶ 179, Rudy Giuliani on Trump Election Fight: We Have ‘1,000 Affidavits from Witnesses in 6 Different
States,’ FOX NEWS (Dec. 12, 2020),
https://video.foxnews.com/v/6215882367001?playlist_id=930909787001#sp=sho w-clips (Ex. 20).
126
months ago, I was being accused of being some kind of Russian spy for merely
bringing out the fact that the Biden family has been involved in 30 years of
racketeering activity, which is all proven. I have the videotape, the documents, the
hard drive. I’ve got every piece of evidence. And I've got a mountainful of evidence
and nobody would believe me. We're going to find out it's true. You're also going
to find out that this election is stolen. I hope it's not too late.
Cain: Mr. Mayor, I'd love to ask you about timing and that evidence that you bring
up. First of all, on timing, do you have time -- you said over the next two days,
you'll be bringing many of these suits -- these suits where someone will have
standing.’ Do you have the time to bring these and put forward the evidence? And
what is your strongest piece of evidence? You bring up that video, but you also
mention the computer. So what is your strongest piece of evidence you look
forward to presenting?612
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used in the segment, such as
“we have a machine, the Dominion machine … was developed to steal elections, and being
used in the states that are involved” and “I have the videotape, the documents, the hard drive.
I’ve got every piece of evidence. And I've got a mountainful of evidence[]” make factual
assertions that evidence regarding Dominion’s involvement in the election fraud actually exists.
When viewed in the full context of the overall communication expressed during the segment, a
reasonable viewer would understand that Statement is asserting facts regarding Dominion, not an
opinion.
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
T. JANUARY 26, 2021 TUCKER CARLSON TONIGHT BROADCAST:
1. Excerpt from Dominion:
Carlson: Well, of course you will likely recognize our next guest. His name is Mike
Lindell. He runs My Pillow. He advertises every night on this show and across
Fox News. He’s one of our biggest sponsors, and we are grateful for that.
Lindell: [S]omeone put up on – on the internet, actual machine – new machine
election fraud, I – I retweeted it . . . Dominion . . . said they were going to go after
Mike Lindell. Well they did. They hired hit groups, bots and trolls went after all
my vendors, all these box stores to cancel me out. . . . I’m not backing down. We
cannot back down out of fear this time.
612
Fox Appendix, December 12, 2020, Fox & Friends Tr. Ex. A32.
127
Carlson: I totally agree.
Lindell: I’ve been all in trying to find the machine fraud and I – we found it. We
have all the evidence. . . . I have the evidence. . . . I dare Dominion to sue me
because then it will get out faster. So this is – it – you know, they don’t – they
don’t want to talk about it.
Carlson: No they don’t.613
2. Omitted Context Offered by Fox:
Carlson: For the crime of having different opinions, Mike Lindell has just been
banned from Twitter. Several resellers have also stopped selling his product. That
happened today. That would include Bed Bath & Beyond, Kohl’s, and Kroger.
Again, Bed Bath & Beyond, Kohl’s, and Kroger. Those are just a few. When you
support freedom of speech, you’re no longer allowed to speak. That’s the new rule.
Since this network is one of the last places in this country where Americans are
allowed to speak, we're honored to have Mike Lindell on tonight to give his
perspective.
...
Lindell: Thanks for having me on, Tucker. That list is bigger. There’s also HEB,
The Shopping Channel, ShopHQ. I mean, they just keep, you know, turning in their
POs and saying we’re -- we don’t want MyPillow anymore.
Carlson: So your views on politics, whether our viewers or anyone else agrees with
them or not, are -- are, you know, the views of millions of people. And you’ve
expressed them. You have now been shut down. It seems pretty clear they’re
sending a message.
...
Lindell: This time, about 17 days ago, when someone put up on -- on the internet
actual machine – new machine election fraud, I retweeted it and they took my
Twitter down. Now, when they took it down -- this is interesting -- they didn’t take
it down all the way. I just couldn’t do anything. And they were running my Twitter
like they were me. My friends are going, you’re not tweeting very much; and when
you do -- I said, I’m not doing that. So I tried to take it down and I got a tweet -- a
thing from Germany saying these are Twitter rules and you cannot do this, taking
anything down. So they ran my Twitter for about 14 days, 15 days. Then, yesterday,
they -- they put it back up so I could run it. And I made one tweet and the tweet
was a good – a good letter written by one of my employees because I’m getting
attacked about my integrity and stuff, and they took it down five minutes later. And,
then, a week ago, they did a – Dominion went online – on TV and said they were
going to go after Mike Lindell. Well, they did. They hired hit groups of bots and
613
Compl. ¶ 179, Tucker Carlson Tonight (@tuckercarlsontonight), INSTAGRAM (Jan. 26, 2021),
https://www.instagram.com/p/CKh8slFBKMA/ (Ex. 17).
128
trolls, went after all my vendors, all these box stores to cancel me out. This cancel
culture, fake stories coming out to attack my Lindell Recovery Network, which
helps addicts across the country. It’s just a shame, Tucker, what they – if they can
do it to me, believe me, they can to it to anyone out there. But we’re not – I’m not
backing down. We cannot back down out of fear this time. Nobody can.
...
Carlson: If they disagree with you or think that you’re saying things that are
incorrect, why don’t they explain what those things are, and why don’t they try to
convince you that you’re wrong? I mean, I thought the rules were, if you think
someone is saying something incorrect, you explain how it’s incorrect and you
convince his audience that actually you’re right and he’s wrong. When did that go
away? When did we decide force was the only answer to disagreement?
Lindell: Right. And that – you know, they – I can’t even livestream on Facebook.
They’ve shut it down. But you’re exactly right, Tucker. What I’d say to them with
this particular thing that’s going on now, I’ve been all in trying to find the machine
fraud. And we found it. We have all the evidence. So what all these [e]ven – all
these outlets that have been calling me from the Washington Post, New York
Times, every – every outlet in the country, they go, Mike Lindell, there’s no
evidence and he’s making fraudulent statements. No, I have the evidence. I dare
people to put it on. I dared Dominion to sue me, because then it would get out faster.
So this is -- you know, they don’t -- they don’t want to talk about it. They don’t
want to say it.
...
Carlson: They’re not making conspiracy theories go away by doing that.
...
Carlson: You don’t answer -- you don’t make people kind of calm down and get
reasonable and moderate by censoring them. You make them crazier, of course.614
3. The Statement Asserts a Fact.
The Statement uses precise and readily understood language to assert facts which are
capable of being proven true or false, and the context in which the Statement is presented creates
an inference to a reasonable viewer that it is factual. The language used in the segment, such as,
“I’ve been all in trying to find the machine fraud. And we found it. We have all the
evidence[,]” and “No, I have the evidence. I dare people to put it on. I dared Dominion to sue
me, because then it would get out faster[]” make factual assertions, supported by “all the
evidence,” regarding Dominion’s involvement in the election fraud. When viewed in the full
context of the overall communication expressed during the segment, a reasonable viewer would
understand that Statement is asserting facts regarding Dominion, not an opinion.
614
Fox Appendix, January 26, 2021, Tucker Carlson Tonight Tr. Ex. A38.
129
As such, the Court finds that the Statement asserts facts and therefore not protected under
the opinion privilege.
130