A while back I wrote about the revelations of behind-the-scenes discussions at Fox News regarding the election fraud claims that President Trump and his supporters made in the aftermath of the 2020 election.

The depositions are from the discovery done for the lawsuit Dominion is pursuing against Fox regarding claims that the company was complicit in a vote fraud scheme that robbed Trump of victory in the election.

I never bought the allegations against Dominion for a second, although I think that anybody who thinks that election fraud never happens is nuts. Everything that is valuable is going to be targeted for theft, and elections are very valuable indeed. To have a massive company conspire to steal an election? The bar for evidence is very high indeed to make that claim. It would be corporate suicide and serious jail time for all involved.

Dominion’s lawsuit against Fox is an existential threat to the company, both because they are suing for a boatload of money and because the discovery is pulling back the curtain on what goes on behind the scenes.

The revelations put out into the public realm thus far paint a one-sided picture, but Fox will have its say as well. Fox released this statement about the discovery revelations a while back, and it bears repeating:

“There will be a lot of noise and confusion generated by Dominion and their opportunistic private equity owners, but the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan. Dominion has mischaracterized the record, cherry-picked quotes stripped of key context, and spilled considerable ink on facts that are irrelevant under black-letter principles of defamation law.”

Dominion has indeed cherry-picked quotes and Fox is indeed correct that proving defamation as a public figure is very difficult, but even if Fox survives the lawsuit intact, the “cherry-picked quotes” are unpleasant to read.

It pains me to rely on Media Matters as a source since they are execrable in every way, but Matthew Gertz has cherry-picked from the Dominion cherry-picking to point out some of the most damaging bits. And since we should face the truth however unpleasant, I will use some of his tweets.

Apologies.

In Rupert Murdoch’s deposition in the lawsuit, he makes clear that he and his team believed that the evidence weighed heavily against the voter fraud claims being made and that he worried that his network would be amplifying a false narrative. This is something I accuse the Left-wing media of doing all the time and it is as immoral when Fox does it as when MSNBC or CNN does.

He also admits that they did it because they felt they had to in order to keep the audience and their advertisers.

Rupert Murdoch acknowledged in his deposition that numerous Fox hosts had "endorsed at times this false notion of a stolen election." pic.twitter.com/tCBZL9Uyxw

— Matthew Gertz (@MattGertz) February 27, 2023

Murdoch made clear that despite concerns about promoting a false narrative, the network chose to do so because the cost of not doing so would be the loss of both sponsors–Mike Lindell is a very large sponsor of the network–and viewers, who were defecting from the network to watch more Trump-friendly media outlets.

Regarding the hosts, I think it is arguable that the network has an out; Hannity and others are clearly commentators, and if they honestly believed what they were saying despite it conflicting with the judgment of the news division, it is not unreasonable to give them latitude in making their case.

Of course, Hannity said in his own deposition that he didn’t believe the accusations against Dominion, so no dice there.

Clearly Murdoch reveals that he thinks that the network benefited financially from platforming falsehoods; his concern seemed to be the green, not giving his talent latitude.

Fox execs were carefully attuned to the brand polling Shah's team was doing in mid-November 2020, which showed "[p]ositive impressions of Fox News among our viewers dropped precipitously after Election Day to the lowest levels we’ve ever seen." pic.twitter.com/EXrNaOXNfO

— Matthew Gertz (@MattGertz) February 27, 2023

Fox is hardly alone in paying attention to what viewers think and tailoring their coverage to give viewers what they want; by the same token, it’s obvious that nobody in the news business, including Fox, is all that interested in actually sticking to the truth as they see it.

“You want to hear this? I got you!” seems to be the attitude.

"Rupert testified,
with respect to the lies around the 2020 Presidential Election, that 'I would have
liked us to be stronger in denouncing it, in hindsight." pic.twitter.com/mBwyF1xEPK

— Matthew Gertz (@MattGertz) February 27, 2023

It’s important to ground the discussion here in the context of the lawsuit for a moment: Fox News as an organization, including the hosts platforming the people accusing Dominion of committing massive election fraud, believed those accusations were false. Reporting that Trump supporters were saying that is well within the bounds of reporting news, but repeatedly platforming the accusations against a company without serious pushback is pretty hard to justify.

And they did it because they were afraid of losing viewers. Which basically means that they were willing to participate in a lie for money.

Here we are, I've been waiting for this — Fox's internal research department "fact-checked the allegations and debunked the charges" against Dominion, but Fox kept airing them.

Fox subsequently canned the "Brain Room" members. pic.twitter.com/fca5Uhtzw2

— Matthew Gertz (@MattGertz) February 27, 2023

As a consumer of news–indeed, as a citizen who depends upon others to tell the truth as they see it–I see this as a betrayal. And, obviously, Fox’s own corporate lawyer pretty much acknowledges as much. The news organization’s leadership had a responsibility to correct falsehoods and didn’t.

Am I shocked that Fox was concerned about retaining viewers? Of course not. I expect every news organization to pitch its coverage to its audience, and in the modern world that means among other things ideological segregation.

However, in general, I would have hoped this would be limited more to story choice and angle, and certainly would not include tolerance for falsehoods.

In my mind, that’s unforgivable. I can correct for ideological bias by collecting many sources and building up my own picture; it’s imperfect, but knowledge is always imperfect. Only God has the full picture.

But I recoil at the lies I am told, as should we all. It’s bad enough when it is some random person, and worse when it is a news source.

I excoriate other MSM outlets when I think they have lied to me. How could I do less when it is Fox News?

FOR CONTEXT:

I just got an email from Fox about Dominion’s release of the Murdoch deposition and its legal pleadings. I will include it in full.

As I noted, Dominion is doing its best to put itself in the best light, and Fox in the worst. Legally I suspect Dominion’s case is difficult to win.

On the record statement from FOX:

“Dominion’s lawsuit has always been more about what will generate headlines than what can withstand legal and factual scrutiny, as illustrated by them now being forced to slash their fanciful damages demand by more than half a billion dollars after their own expert debunked its implausible claims. Their summary judgment motion took an extreme, unsupported view of defamation law that would prevent journalists from basic reporting and their efforts to publicly smear FOX for covering and commenting on allegations by a sitting President of the United States should be recognized for what it is: a blatant violation of the First Amendment.”

Additional points that can be used on the record from FOX:

• Dominion’s briefing lays bare just how extreme its view of the law is.  According to Dominion, the press is liable for reporting newsworthy allegations made by the sitting President of the United States even if the press makes clear that the allegations are unproven and that many people contest them.  The consequences of that position are astounding.

• One of Dominion’s own lawyers explained before Dominion filed suit: “It is unthinkable that any competent plaintiff’s lawyer would advise a client to sue the likes of CBS, FOX, or CNN for live transmission of the defamatory remarks uttered by, let us say, President Trump.” 1 Rodney A. Smolla, Law of Defamation §4:97 (2d ed. 2022). Dominion does not explain why a different rule applies when the press reports allegations made by the President’s lawyers on the President’s behalf.

• When Dominion is not mischaracterizing the law, it is mischaracterizing the facts.  Just like it did in its opening summary judgment motion from 2-16-23, Dominion cherry-picks any soundbite it can find from any corner of the Fox organization even though it admits in its brief—117 pages later—that most of that evidence is utterly irrelevant to the legal issues in this case.  Dominion’s focus on such irrelevant evidence demonstrates that it is more interested in headlines than law or fact.

Summary of Key Points from FOX’s Opposition to Dominion’s Summary Judgement Motion on 2-16-23

Dominion mischaracterizes the facts by cherry-picking soundbites, omitting key context, and mischaracterizing the record

1. p. 92-93: Dominion emphasizes that at the very end of the three-page email, Bourne called herself “pretty wackadoodle.” Dom.MSJ.Ex.154, Powell Email (Nov. 7, 2020). Dominion quotes that portion of the email repeatedly and contends that it should have put Bartiromo on notice that the President’s claims were bunk. But as Bartiromo explained at her deposition, “I did not go to press with this person.” Dom.MSJ.Ex.98, Bartiromo Dep. Tr. 117:18. And although Dominion’s counsel fixated on the document during Bartiromo’s deposition, Bartiromo repeatedly explained that she did not know who this person was, did not know if she did anything with the email beyond “forwarding to my producer to check it out,” and explained that “it’s not evidence” and that she did not “know what it is.” Id. at 126:15-16, 127:17-19, 134:7-8. Moreover, Bartiromo explained that Powell had promised “a firehose” ofother “evidence,” including “sworn testimony” from a “team of lawyers” who promised they could prove their claims in court. Id. at 134:19-135:7. That Powell forwarded to Bartiromo one email of questionable reliability hardly shows that Bartiromo “in fact entertained serious doubts” about the allegations that the President and his lawyers were pressing. St. Amant, 390 U.S. at 731. The undisputed testimony and contemporaneous documents show the opposite.

1. p. 98: Dominion contends that Hannity “knew Powell’s claims were false” because he testified that “with respect to ‘that whole narrative that Sidney was pushing, I did not believe it for one second.’” Dom.MSJ.142 (citing Dom.MSJ.Ex.122, Hannity Dep. Tr. 322:19-21). But that is not what Hannity said. Dominion literally plucks that language from the middle of Hannity’s sentence and inserts a period where the sentence continued. The actual testimony reads: “I did not believe it for one second, and I tried to listen as time went on. I gave them a fairly generous period of time, I felt, in terms of, let’s see what you have; you are making accusations; you say proof is coming. I waited for the proof. I got my Sidney answer on November 30th.” Dom.MSJ.Ex.122, Hannity Dep. Tr. 322:21-25. As this testimony makes clear, it was only after Powell was unwilling to produce proof when Hannity pressed her on why her whistleblowers would not come forward and sign affidavits on his November 30 show—the only Hannity show that Dominion challenges—that Hannity “got [his] Sidney answer.” Id.; see also id. at 420:9-17.

1. p. 102: [A]lthough Dominion suggests that it can infer actual malice from the fact that Carlson did not “pushback” on Lindell’s “debunked claims about Dominion,” none of that is correct. Dom.MSJ.147. Lindell did not even make any allegations about Dominion on Carlson’s show, debunked or otherwise. All Lindell said was: “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 … I have the evidence. I dare people to put it on. I dare Dominion to sue me, because then it would get out faster. So this is—you know, they don’t want to talk about it. They don’t want to say it. They just say, oh, you’re wrong.” Ex.A38, Tucker Carlson Tonight Tr. 19-20 (Jan. 26, 2021). Carlson responded: “They’re not making conspiracy theories go away by doing that. You don’t answer—you know, don’t make people kind of calm down and get reasonable and moderate by censoring them. You make them get crazier, of course. This is … ridiculous.” Id. at 20.

1. p. 131: Dominion claims that “Scott told Cooper not to censor” Pirro on her November 14 show, Dom.MSJ.113, but that is misleading in the extreme. In reality, Scott told Cooper to “review scripts,” and when Cooper responded that Pirro “is very into not being ‘censored,’” Scott replied, “[w]e don’t want to censor her.” Dom.Ex.415, Scott Text Message (Nov. 13, 2020). Cooper confirmed: “Of course not we are not telling her she should absolutely give her opinion and take on it just need to be clear what voter fraud allegations are verified and what are not.” Id.

1. p. 136: Dominion points out that after Bartiromo’s November 8 show, Schreier texted Petterson that Bartiromo “has gop conspiracy theorists in her ear.” Dom.MSJ.110, 120. But it selectively omits the rest of the exchange, in which Schreier says that “Maria did a good job with Rudy.” Dom.MSJ.Ex.398, Schreier Text Messages (Nov. 8, 2020). Petterson likewise states, “She did well.” Id. Far from demonstrating that Schreier or Petterson harbored doubts about Bartiromo’s coverage, the exchange confirms that they thought it was responsible and fair.

1. p. 136: Dominion also points out that Clark told Wallace and the late Alan Komissaroff that he was “trying to stay away” from Giuliani on November 7. Dom.MSJ.107. But it fails to mention that, when asked about the President’s allegations about Dominion in his deposition, Clark testified that he did not know whether they were true in early November. Dom.MSJ.Ex.106, Clark Dep. Tr. 264:4-12; 266:21-267:1. Dominion selectively excises a snippet of Clark’s testimony and claims that he testified that, on November 6 (i.e., before the allegations at issue here even surfaced), “he ‘did not believe that the election was being stolen.’” Dom.MSJ.106. But Dominion omits that Clark also testified that “I didn’t know whether it was or wasn’t, to be honest.” Dom.MSJ.Ex.106, Clark Dep. Tr. 155:12-18.

Dominion has taken an extreme view of defamation law that would stop the media in its tracks

1. p.44:  Dominion insists that it is “legally irrelevant” that all of the coverage it challenges related to allegations being leveled by the sitting President and his legal team. Dom.MSJ.7.  According to Dominion, it is a “black-letter rule,” apparently subject to no exceptions other than an exceedingly narrow state-law … for recounting statements set forth in pending lawsuits, that “one who republishes a libel is subject to liability just as if he had published it originally, even though he attributes the libelous statement to the original publisher, and even though he expressly disavows the truth of the statement.”  Dom.MSJ.7.  In Dominion’s view, then, the First Amendment affords literally no protection to the press to cover and comment on newsworthy allegations leveled by newsworthy figures like elected officials made outside the context of “official proceedings.”
2. p.45: The consequences of that approach are astounding.
   1. • Under Dominion’s approach, if the President falsely accused the Vice President of plotting to assassinate him, the press would be liable for reporting the newsworthy allegation so long as someone in the newsroom thought it was ludicrous.
      • The Washington Post would be on the hook for reporting President Trump’s allegation that President Obama was born in Kenya, since several of its editors understood that the claim was bogus.
      • The New York Times would be liable for reporting allegations in the Steele Dossier so long as some editors at the Times doubted the claims.
      • CNN would be liable for reporting former Governor Andrew Cuomo’s denials and counter-allegations that his accusers were liars since some CNN executives undoubtedly believed the Governor’s accusers.
3. p.46-47:  [I]f Dominion’s view of the law were correct, then it would have a defamation claim against virtually every news outlet in the country, as everyone covered what the President and his lawyers and allies were alleging in the wake of the 2020 election, even though many made no secret of the fact that they doubted their claims. After all, by Dominion’s telling, the press cannot repeat such obviously newsworthy allegations even if it “expressly disavows the[ir] truth.” Dom.MSJ.7.

1. • 1. Indeed, if it is really “legally irrelevant” that the press was republishing the President’s allegations for the obvious reason that they were profoundly newsworthy regardless of their truth or falsity, then Dominion could put C-SPAN out of business tomorrow with a multi-billion defamation suit, as the November 19 press conference featuring Giuliani and Powell and their explosive claims about Dominion … remains on CSPAN’s website to this day. 
     2. As does the December 2 press conference featuring President Trump and his claim that “you could press a button for Trump” on Dominion machines “and the vote goes to Biden” with a “turn of the dial or the change of a chip.”

1. p.4-5 Ultimately even Dominion does not really appear to believe its radical theory, as it has not sued any of those entities for reporting the President’s allegations or sued Fox News for airing Maria Bartiromo’s post-election interview of President Trump. Even Dominion seems to believe that reporting newsworthy allegations made by others merits some protection. It just disagrees with Fox News about where to draw the line.
2. p.4-5.  The New York Court of Appeals has made clear what that line is, in the context of allegations of election interference no less: So long as a reasonable viewer, when viewing a statement in the “over-all context in which the assertions were made,” “would understand the statement[] … as mere allegations to be investigated rather than as facts,” reporting the allegation is not defamatory, but is instead affirmatively protected by the First Amendment.Brian v. Richardson, 660 N.E.2d 1126, 1130-31 (N.Y. 1995). And so long as the press makes clear that the allegations are just allegations, it is free to “offer[] [its] own view that these [allegations] [a]re credible” and merit investigation (as some Fox News hosts did), just as it is free to offer its own opinion that the allegations are implausible (as other Fox News hosts and other networks did). Id.
3. p.5 That is all part of the truth-seeking function protected by the First Amendment, which values public debate about newsworthy allegations and remedies speech with more speech, not billion-dollar defamation suits against the press. The First Amendment “presupposes that the right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Dominion might think that principle is “folly,” “but we have staked upon it our all.” Id.

Before the election, computer scientists, cybersecurity experts, the New York Times, CNN, and politicians from both parties expressed serious concerns about voting machines generally and Dominion machines specifically

1. p.8-9:  For example, in 2004, the New York Times editorial page proclaimed that “electronic voting machines cannot be trusted until more safeguards are in place” after a study conducted by Maryland demonstrated “vulnerabilities” in machines made by Diebold Election Systems that “seem[ed] almost too bad to be true.” Ex.D2, N.Y. Times, How to Hack an Election (Jan. 31, 2004).
2. p.8-9: A few years later, a Times columnist noted that machines made by Election Systems & Software (ES&S) allegedly failed to count thousands of votes, potentially costing Democrats a congressional seat. Ex.D3, N.Y. Times, When Votes Disappear (Nov. 24, 2006).
3. p.10-11: In 2018, for example, Princeton University Professor Andrew Appel published a popular article illustrating “a serious design flaw” in Dominion’s new machines: “after you mark your ballot, after you review your ballot, the voting machine can print more votes on it.” Ex.H1, Andrew Appel, Design Flaw in Dominion ImageCast Evolution Voting Machine, Freedom to Tinker (Oct. 16, 2018).

1. 1. Appel elaborated that “it’s impossible to absolutely prevent a hacker from replacing the computer’s software with a vote-stealing program that deliberately miscounts the vote.” Id.  Dominion has acknowledged that its customers saw this article and raised a “myriad of questions” about it that were “[b]ad for business.” Ex.E2, Ikonomakis Dep. Tr. 66:15-67:1, 69:23-69:2.

1. p.11-12: Likewise, a report in 2019 noted that hackers were able to access multiple Dominion machines, that “ballots could easily be stolen” from the machines “using common items such as a standard trash picker,” that hackers were able to “boot an operating system of their choice and play video games” on Dominion’s machines, and that Dominion’s “filesystem was unencrypted and unprotected.” Ex.G13, DefCon Report 20-21 (August 2019).

1. 1. Those findings were widely reported in the media. See, e.g., Ex.D26, Washington Post, Hackers Were Told to Break Into U.S. Voting Machines. They Didn’t Have Much Trouble (Aug. 12, 2019); Ex.D27, CNN, At Hacking Conference, Pentagon’s Transparency Highlights Voting Companies’ Secrecy (Aug. 12, 2019).

1. p.12: In January 2019, Dominion submitted its brand-new Democracy 5.5 System for certification in Texas. But Texas refused to certify the system due to multiple hardware and software problems. Ex.G2, Texas Secretary of State Report (June 20, 2019).

1. 1. When Dominion tried again a few months later, Texas refused to certify the system yet again, questioning whether it “is safe from fraudulent or unauthorized manipulation.” Ex.G3, Texas Secretary of State Report (Jan. 24, 2020).

1. p.12-13: When Georgia decided to buy new voting machines from Dominion in 2019, “cybersecurity experts, election integrity advocates and Georgia Democrats” led by former gubernatorial-candidate Stacey Abrams opposed the purchase on the ground that Dominion’s machines “are widely considered vulnerable to hacking.” Ex.D7, Politico, Georgia Likely to Plow Ahead with Buying Insecure Voting Machines (Mar. 28, 2019).
2. p.13: Later that year, voters and advocacy groups sought a preliminary injunction in a suit against the state in federal court, claiming that its implementation of the Dominion system and its use of Dominion software violated their “First and Fourteenth Amendment rights to cast ballot votes that will be reliably counted.” Curling v. Raffensperger, 493 F.Supp.3d 1264, 1268-69 (N.D. Ga. 2020).

1. 1. The district court held that the plaintiffs established a likelihood of success on the merits of some of their claims, crediting expert testimony that raised security concerns with Dominion’s systems.
   2. The court noted that an “array of experts and subject matter specialists provided a huge volume of significant evidence regarding the security risks and deficits in the [Dominion] system.” Id. at 1278.
   3. One cybersecurity expert testified that Dominion’s system remained vulnerable to a “cyber attack … causing the swapping or deletion of specific votes cast.” Id. at 1279.
   4. The court concluded that “national cybersecurity experts convincingly present evidence that this is not a question of ‘might this actually ever happen?’—but ‘when it will happen.’” Id. at 1342.

1. p.14 In December 2019, Democratic Senators Elizabeth Warren, Amy Klobuchar, Ron Wyden, and Democratic Congressman Mark Pocan sent a public letter to Staple Street Capital, the private equity firm that owns Dominion.

1. 1. The letter noted their concerns that “secretive and trouble-plagued companies, owned by private equity firms and responsible for manufacturing and maintaining voting machines and other election administration equipment, ‘have long skimped on security in favor of convenience,’ leaving voting systems across the country ‘prone to security problems.’” Ex.G4, Warren Ltr. (Dec. 6, 2019) (quoting Ex.D25, AP News, US Election Integrity Depends on Security-Challenged Firms (Oct. 28, 2019)).
   2. And in January 2020, Congress held a widely publicized hearing in which lawmakers “expressed concern about foreign components in the nation’s election equipment” to executives from the nation’s three major voting manufacturers, including Dominion CEO John Poulos. Ex.D10, Washington Post, Voting Machine Vendors Get Scrutiny at Congressional Hearing (Jan. 9, 2020).
   3. During the hearing, Poulos admitted that several components in its machines were manufactured overseas.Id. (“Several of those components, to our knowledge, there is no option for manufacturing those in the United States.”).

1. p.15: The Washington Post stated that “election integrity activists say the new [Dominion] voting machines are unaccountable and unverifiable and have many of the same security vulnerabilities as the old ones.” Ex.D12, Washington Post, Another Showdown Set This Week Over Georgia Voting Machines (Sept. 9, 2020).
2. p.15: The New York Times reported that Dominion’s system was a “Rube Goldbergian assemblage of interrelated components” and that an “expert witness for the plaintiffs in the [Curling] lawsuit” saw “the multitude of components as more vulnerable to attack.” Ex.D13, N.Y. Times, Anatomy of an Election ‘Meltdown’ in Georgia (July 25, 2020).
3. p.15:The Atlanta Journal-Constitution stated that Dominion’s system “is vulnerable to cyberattacks that could undermine public confidence, create chaos at the polls or even manipulate the results on Election Day.” Ex.D14, Atlanta Journal-Constitution, In High-Stakes Election, Georgia’s Voting System Vulnerable to Cyberattack (Oct. 3, 2020).
4. p.16. Dominion’s own employees expressed serious concerns about the security of its machines.

1. 1. Mark Beckstrand, a Dominion Sales Manager, confirmed that other parties “have gotten ahold of [Dominion’s] equipment illicitly” in the past. Ex.E3, Beckstrand Dep. Tr. 127:8-127:22. Beckstrand identified specific instances in Georgia and North Carolina and testified that a Dominion machine was “hacked” in Michigan. Id. Beckstrand confirmed that these security failures were “reported about in the news.” Id.
   2. Dominion’s Director of Product Strategy and Security, Eric Coomer, acknowledged in private that “our shit is just riddled with bugs.” Ex.H2, Coomer Email (Oct. 30, 2020).
   3. Indeed, Coomer had been castigating Dominion’s failures for years. In 2019, Coomer noted that “our products suck.” Ex.H3, Coomer Message (Nov. 5, 2019).
   4. He lamented that “[a]lmost all” of Dominion’s technological failings were “due to our complete f— up in installation.” Id. And in another instance, he identified a “*critical* bug leading to INCORRECT results.” Ex.H4, Coomer Email (Jan. 5, 2018).
   5. He went on to note: “It does not get much worse than that.” Id. And while many companies might have resolved their errors, Coomer lamented that “we don’t address our weaknesses effectively!” Ex.H5, Coomer Email (Sept. 25, 2019).

When the President and his lawyers claimed that Dominion helped rig the election and threatened to file lawsuits alleging as much, FOX News informed the public about those allegations and reported Dominion’s denials too

1. See pages 27-34 collecting examples.

Instead of participating in that debate, Dominion’s owners—a private equity firm—chose to file a $1.6 billion lawsuit to squelch the press, even though its own public relations firm expressed skepticism about whether FOX News’ coverage was defamatory.

1. p. 34-35: As the President and his lawyers, surrogates, and allies were airing their allegations about Dominion, numerous media outlets, including Fox News, offered Dominion opportunities to tell its side of the story. Dominion accepted one such opportunity from FOX News and sent executive Michael Steel to sit for an interview onAmerica’s News Headquarters on November 22. But Dominion declined every other invitation from FOX News. See Ex.E10, Bischoff Dep. Tr. 188:2-21.
2. p. 34-35: Instead of actively participating in the public dialogue about the President’s allegations at the time, Dominion opted to hold its fire and pursue litigation. By its own account, Dominion started preparing for affirmative litigation as early as November 10. Ex.H22, Fratto Decl. ¶2 (Sept. 21, 2022).
3. p. 34-35.  Dominion’s own public relations firm expressed skepticism as to whether FOX News’ coverage was defamatory. See Ex.H7, Beckman Email (Dec. 18, 2020).

Discovery has thoroughly debunked its own $1.6 billion damages claims, illustrating that Dominion’s suit has always been about what will generate the most press

1. p. 36-37:  Dominion’s $1.6 billion claim was dubious from the start given that its current owner (Staple Street Capital) paid just $38.3 million for a roughly 75% stake in the company in 2018. Ex.F2, Hosfield Report at 124 (Nov. 29, 2022). Discovery has since confirmed that Dominion’s damages calculation is wishful thinking. Dominion’s own expert calculated Dominion’s alleged lost business opportunities at a mere $88 million. Id. at 5.
2. p. 38: Staple Street’s own employees and former employees have ridiculed Dominion’s $1.6 billion damages claim, observing that it “[w]ould be pretty unreal if you guys like 20x’ed your Dominion investment with these lawsuits.” Ex.E12, Franklin Dep. Tr. 77:8-10.
3. Dominion now admits that its headline-grabbing claim of $1.6 billion was fanciful from the start, as it now agrees (after its own damages expert contradicted it) that its original claim for both $1 billion in enterprise value and $600 million in lost profits was double counting. Dom.Opp.182 (lost profits are “alternative” to lost enterprise value).

Dominion spends the bulk of its brief on evidence that is completely irrelevant under black-letter principles of defamation law—as it implicitly admits in its own brief

1. p.79: Dominion tries to distract from its evidentiary deficiencies by cherry-picking anything it can find from any corner of the Fox News organization that shows that anyone at Fox News doubted or disbelieved the President’s allegations.

1. 1. From there, it posits that “Fox” writ large—not the specific person(s) at Fox News responsible for each statement—“knew” that that specific statement was false.
   2. But binding U.S. Supreme Court precedent could not make clearer that the subjective “state of mind” necessary to prove actual malice must be brought “home to the persons in [Fox News’] organization having responsibility for the publication” of each statement. Sullivan, 376 U.S. at 287.

1. p.79: Yet most of Dominion’s “Fox” evidence has absolutely nothing to do with what the individuals responsible for publishing the allegedly defamatory statements knew and when they knew it.

1. 1. That becomes obvious once, after starting its brief with pages of cherry-picked quotes and evidence about other people, Dom.MSJ.97-117, Dominion finally provides a list of individuals it considers “responsible” for the challenged statements, Dom.MSJ.117, 123, 135, 139, 141, 144.
   2. While that list is vastly overbroad, that very overbreadth confirms that most of Dominion’s so-called “overwhelming” evidence is irrelevant to the actual malice inquiry, as most of it relates to individuals at Fox News and Fox Corporation who are not even on Dominion’s own overbroad list of “responsible” individuals.