HOWARD KURTZ (HOST): There's been practically round-the-clock coverage of the lawsuit against Fox by Dominion Voting Machines. Now that all the legal filings are in and a judge in Delaware will give consideration this month to whether the case goes to trial, it's time for me to weigh in. I'm not sugarcoating the allegations in this $1.6 billion suit, or the fact that Fox has taken a hit in the court of public opinion, but there is a crucial First Amendment argument here involving the coverage of unsubstantiated claims of 2020 election fraud by Donald Trump and his allies.
Fox says Dominion has been cherrypicking quotes from depositions. “Dominion has been caught red-handed using more distortions and misinformation in their PR campaign to smear Fox News and trample on free speech and freedom of the press." Now I'm going to give you both sides, but let me say this: Fox's critics and competitors are denouncing the network, and many of them are rooting not just for Fox to lose the suit, but to be wiped out as a company because they can't stand the mostly conservative view of a relative handful of opinion hosts -- the essence of free speech.
The heart of dominion's suit is a gap between some hosts privately saying they didn't believe Trump's fraud claims or didn't like the president and what was said on the air. Dominion argues Fox duped the audience to boost ratings.
While any company's private messages would be embarrassing, let me point out a couple of things you may not have heard in the barrage of negative coverage. Maria Bartiromo invited Dominion CEO John Poulos to come on her show, but he declined that and numerous other requests. Instead, she read a Dominion statement saying “the latest flow of absurdities is deeply concerning." Only one Dominion spokesman agreed to a Fox News interview.
Poulos said a month after the election that “what youre missing is that no customer cares about the media. It's just more words from their perspective." And Bartiromo wrote the Dominion spokesman, "I'm not sure what to think about the totally unsubstantiated election fraud claims by Trump lawyer Sidney Powell," whom she interviewed, "and we will need to see hard evidence in the next three weeks." Some hosts dealt with the allegations skeptically, others did not.
Fox aired a news conference, so did CSPAN by the way, in which Powell and fellow Trump attorney Rudy Giuliani made unproven claims that Dominion machines were created in Venezuela to help Hugo Chaves steal elections.
Rupert Murdoch said in an internal message that this was really crazy stuff damaging everybody, I fear. Turkcer Carlson privately described Powell as a liar but publicly called her out after his show kept texting her for proof of her allegations.
Now the period under scrutiny began as Fox's ratings were dropping after the network projected that Joe Biden had won Arizona. And despite tremendous pressure, the network stood by the Decision Desk's accurate call. Internal messages made clear top execs were concerned about alienating the heavily pro-Trump audience. Fox News CEO Suzanne Scott wrote, “We will highlight our stars and plant flags to let the viewers know we hear them and respect them." Murdoch testified that some opinion hosts did endorse the unproven election fraud theories, but not all of Fox, he said, adding, “I would have liked us to be stronger in denouncing it in hindsight."
Fox challenges the Dominion claim of $1.6 billion in damages as inflated, given a private equity firm bought 3/4 of the company five years ago for $38 million. Legally, Dominion must prove Fox acted with malice or reckless disregard for the truth. There was, to be sure, straight reporting by the news division, which also caused some friction, but the fact that some people in the chain of command privately dismissed the fraud claims as nuts or outlandish or insane doesn't necessarily mean Fox couldn't cover and comment on the extremely newsworthy spectacle of a president saying an election was stolen. That's why this case is a major test of the First Amendment.
And a footnote, Fox Corp CEO lachlan Murdoch said the other day: “The network has an obligation to report the news fairly. I think a lot of the noise you hear about this case is actually not about the law, and is not about journalism, and is really about the politics. That," he said, “reflects our polarized society."