Analysis: Murdoch emails feature prominently in Fox News election lawsuit

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Dec. 14 (Reuters) – Did Rupert and Lachlan Murdoch influence Fox News’ coverage of claims about two voting technology companies – knowing those claims were false?

This has become a significant issue in the libel lawsuits filed by Smartmatic and Dominion Voting Systems Corp against Fox News and its parent company Fox Corp (FOXA.O). The plaintiffs seek more than $ 4 billion in damages from the media giant, on-air talent such as Maria Bartiromo and guests including Rudy Giuliani and Sidney Powell, lawyers close to former US President Donald Trump.

Smartmatic and Dominion are seeking communications from Fox Corp President Rupert Murdoch and his son Lachlan, the company’s executive chairman and CEO, to help prove Fox News knew the statements it had released were false, or had acted with reckless disregard for whether they were true or false.

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This is the standard of “real maliciousness” that public figures must prove to prevail in libel cases.

This is just one part of Dominion and Smartmatic’s efforts to show that Fox News, hosts and guests knew or should have known they were amplifying false claims. The polling companies also alleged that the people who made these on-air statements knew they were false or recklessly ignored readily available evidence that they were false.

Fox News decided to dismiss the lawsuits, saying it covered matters of overriding public interest and that this coverage was protected by the First Amendment to the U.S. Constitution.

A Fox News representative declined to comment on behalf of the company and Bartiromo. A representative for Fox Corp and attorneys representing Giuliani and Bartiromo did not respond to requests for comment. In a statement, a lawyer for Powell described the lawsuits as “without merit.”

Bartiromo, Powell, and Giuliani, like other defendants, have argued in court that they practice the freedom of expression protected by the First Amendment to the U.S. Constitution.

In the aftermath of the 2020 presidential election, Trump allies like Giuliani, a Republican, appeared on Fox News and falsely claimed that Dominion and Smartmatic software could have manipulated the vote count in favor of Democratic opponent Joe. Biden.

Another Fox News post-election coverage refuted these claims, as did two Murdoch-controlled newspapers – the Wall Street Journal and the New York Post.

According to Dominion and Smartmatic, this Wall Street Journal and New York Post coverage is proof that Fox News was amplifying electoral conspiracy theories that its leaders knew, or should have known, were wrong.

“This demonstrates the availability of specific information that the defendants have chosen to ignore,” Erik Connolly, a lawyer for Smartmatic, said in an interview. “It wasn’t that hard for them to understand that what they were saying was incorrect.”

In a November 8 court filing, Dominion alleged that the Murdochs “intentionally ignored the facts in their own newspaper and did nothing to stop Fox’s spreading of lies about Dominion.”

Legal experts say there does not appear to be a precedent for Dominion and Smartmatic’s strategy of showing actual malice in part by seeking communication from senior executives, and that their efforts to hold guests and hosts accountable are a more traditional strategy.

In legal records and court hearings, Fox News has claimed that actual malice depends on the state of mind of the people who made the allegations about the election. In its motion to dismiss Dominion’s lawsuit, Fox News attorneys cited a 2013 United States Court of Appeals case for the Second Circuit. In that case, the court ruled that when more than one person is involved in an organization’s publication of an allegedly defamatory statement, the complainant must prove that the person responsible for the publication of that statement acted maliciously.

Lyrissa Lidsky, a media law scholar and dean of the University of Missouri Law School, said the plaintiffs ‘strategy of tracking down the Murdochs’ communication is unusual because the owner of a newspaper, for example, does not Usually does not make the day for day-to-day decisions about what to publish and therefore would not know if a statement was false or had been made with reckless disregard for its falsity.

If the cases survive the dismissal motions, as four legal experts have said, Dominion and Smartmatic would then start looking for emails and other communications and testimony.

Dominion said in a September court filing that he requested internal Fox News documents, including emails, texts and notes exchanged between employees who produced segments on Dominion. An anonymous Fox representative testified on Dec. 8 about the company’s internal communications systems.

It’s possible that Fox executives have written down a communication that could be used against them in these cases, says William & Mary Law School professor Timothy Zick.

“It strikes me as relevant evidence – something that plaintiffs are likely to be entitled to,” Zick said.

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Reporting by Helen Coster in New York and Jan Wolfe in Washington; Editing by Noeleen Wadler, Kenneth Li and Lisa Shumaker

Our Standards: Thomson Reuters Trust Principles.

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