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What Do OAN, Newsmax, And Fox Have In Common? They're All Getting Sued For Defamation.
They're having a hard time, guys.
It's been a rough week in court for wingnut media companies who pushed Trump's Big Lie about a rigged presidential election in 2020. The three horsemen of the apocalypse, Fox, Newsmax, and OAN, were all recently on the pointy end of orders denying their motions to dismiss defamation claims by Dominion Voting Systems and its competitor Smartmatic. You love to see it!
Most of the eleventy-seven defamation cases arising out of the 2020 clusterfuckery were filed in US district courts — not because defamation is a federal cause of action, but because the parties "live" in different states, triggering federal diversity jurisdiction . But because Fox and Newsmax as well as Dominion are all registered in Delaware, those cases wound up in front of Delaware Superior Court Judge Eric M. Davis.
On January 16, Judge Davis described Newsmax making a deliberate effort to steal viewers from Fox by refusing to call the election for President Biden and instead giving massive airtime to Trump's facially nonsensical claims about rampant vote fraud.
On November 7, 2020, most news networks—including Fox—projected that former President Trump lost the election. Newsmax refused to call the election and boasted that it remained “the only major news network to not call the election.” Newsmax reported that the race was “too close to call” and that “Fox News faces backlash from viewers after call for Biden.” The next day Mr. Ruddy declared that former President Trump is “very disappointed in Fox News” and “that Newsmax is now ‘a major player in cable news.’” Newsmax’s ratings received a surge in the three days following the election.
The court went on to describe Newsmax giving free rein to characters like Sidney Powell, Rudy Giuliani, Mike Lindell, and Patrick Byrne (AKA the Overstock weirdo ) to make demonstrably false claims about Dominion rigging the votes in cahoots with Venezuela, China, or Iran.
Dominion made multiple attempts to correct the record, sending memoranda explaining the flaws in MAGAland's claims, but to no avail. And all the while, as its reputation was shredded, states were canceling contracts for Dominion to provide voting machines in upcoming elections.
The court refused to dismiss Dominion's case, finding that the company credibly pled actual malice — that is, not meanness, but publishing something knowing it is false or with a "reckless disregard" as to its whether it is true or not, the standard for defamation of a public official — and that Newsmax's attempt to assert the neutral reportage privilege as a defense was premature.
Fox got a slightly warmer reception from Judge Davis in a ruling issued yesterday, but not a lot warmer. As Reuters reports, Dominion sued Fox News Network last year, and later sued its parent company, Fox Corp, as well as another subsidiary, Fox Broadcasting Company, LLC. The court dismissed the claim against Fox Broadcasting, but allowed the claim against Fox Corp to go forward.
As a corollary to the Newsmax case, Judge Davis noted that Fox was desperately trying to fend off a raid on its viewers by competing conservative networks in late 2020 and early 2021:
In the days after the election, former President Trump continued to criticize Fox News and praise its competitors, including OANN and Newsmax. Former President Trump’s statements had an impact. By November 15, Fox News’s daytime and primetime audience had declined by 34% and 37%, respectively. The stock value of Fox Corporation was negatively impacted as well. Simultaneously, viewership of Newsmax skyrocketed. According to Dominion, the Fox entities decided to embrace and amplify former President Trump’s election fraud narrative to win back viewers.
Moreover, this strategy was allegedly top-down, coming from the Murdoch family itself.
The CEO of Fox Corporation is Lachlan Murdoch, and the Chairman is Rupert Murdoch. Lachlan Murdoch “consults daily” with the CEO of Fox News, and also participates in a “daily morning call” at Fox News. Before Dominion filed this action, the Fox News website identified Lachlan and Rupert Murdoch as part of the “Fox News Executive Staff.” Fox News has since updated its website to identify them instead as part of the “Fox News Executive Leadership.”
Without getting too deep into the procedural weeds, the court refused to dismiss the claim against Fox Corp on the grounds that Dominion made a sufficient argument that Rupert and Lachlan Murdoch directly caused the damage to its reputation. Which means that the sharks at Clare Locke who represent Dominion are probably going to get to depose Messrs. Murdoch if they don't settle this turkey post haste.
Oh, hey, remember that time that Fox immediately settled with Seth Rich's family when it became clear that the plaintiffs were going to be able to depose Sean Hannity?
Over in federal court, Herring Networks — that's OAN to you and me — fared no better in its effort to get Smartmatic's defamation suit tossed. US District Judge Carl J. Nichols failed to be persuaded by OAN's argument that it is but a stranger in DC, merely sending its intrepid reporters in to gather news, and thus not subject to the court's jurisdiction. With the equivalent of a judicial eye roll, the court batted aside this claim, noting that OAN is clearly "transacting business" in the capital as is understood to confer jurisdiction under DC's longarm statute.
"Indeed, but for OAN leasing television production studio and office space, advertising its programming, and promoting its network with guests, OAN’s allegedly false and defamatory statements would not have made it on the airwaves," Judge Nichols writes.
So all three of these cases are going to go forward, unless the defendants come up with a giant wad of cash. Looks like Rudy and Sidney are finally getting their day in court — although not perhaps in the way they'd intended.
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