Breaking-- Dominion WINS part of its defamation claims against Fox News on summary judgment, and Fox

[demmiblue]

Breaking—

Dominion WINS part of its defamation claims against Fox News on summary judgment, and Fox LOSES their bid to dismiss the remainder of the claims, which will go to trial.

Story soon, @lawcrimenews

Prevailing on a motion for summary judgment in a defamation case is difficult and rare, expert @jkosseff told me in this old legal explainer on my podcast.

Give it a listen. https://lawandcrime.com/objections-pod

Essentially, the court is granting Dominion summary judgment on everything but actual malice, which will go to trial.

Link to tweet

Link to tweet

[maxsolomon]

1. The hits keep coming this week!

Keep it coming.

[Bev54]

2. This is so needed and am happy to see the judge make a bold move.

Now will Fox start their negotiations with Smartmatic?

[senseandsensibility]

3. Why isn't this on CNN instead of

endless (and boring) speculation about how the indictment helps tfg.

[Kennah]

6. NBC says going to trial

https://www.nbcnews.com/politics/politics-news/judge-refuses-dismiss-dominion-lawsuit-fox-news-rcna76422

[Ms. Toad]

9. It goes to trial on a single element of the claim.

Summary judgment (decision without trial) on all elements of defamation except malice, so it will go to trial on malice and - assuming malice is established - damages.

That article is incredibly poorly written.

Fox wanted it dismissed in their favor. They lost entirely. (It is a near certainty that any defendant asking for summary judgment will lose)
Dominion wanted it dismissed in their favor. They won on all elements, except malice and damage. (It is rare for summary judgment to be granted in a case this complex on so much of the claim.)

So the headline is accurate (it is a big blow for Fox), but really misses the point. The blow to Fox isn't that it is going to trial, it is that Fox has already lost the vast majority of the case. It's as if Fox started out with 5 highways to escape liability (there are 5 things Dominion had to prove). Four of those roads for Fox have now been washed out - and there is a single road out of liability.

Yes, there is a trial involved, but no one with any legal background at all expected Fox would get the case dismissed. It never happens. And for Dominion to have already won 4 of the elements it has to establish is huge. NBC buries that at the bottom of the article - almost as an afterthought.

[Kennah]

12. You said

"It is rare for summary judgment to be granted in a case this complex on so much of the claim."

So you're saying we're back in uncharted waters?

[Ms. Toad]

39. Not really.

Complex cases usually have disputed facts (or contradictory legal theories) that deserve their day in court. But just because it is rare, doesn't make it uncharted territory in this case, where it all played out in view of the public and there is lots of evidence whcih can't be disputed.

Rare things happen. Just not very frequently.

[TheRickles]

13. So no penalties for Fox unless malice is proven?

I'm not clear what the practical implications of this decision are, and how Fox will be affected, if at all, before malice is proven. Thanks in advance for any clarifications.

[LiberalLovinLug]

19. Yes. From what I have heard, Dominion had to prove there was malice in order to win

Or at least to win big. So now that the judge has removed that requirement towards Fox News, it seems to actually be swinging to Fox's favour.

But what do I know?

[Ms. Toad]

28. No. This is a big win for Dominion.

Dominion ALWAYS had to prove malice to win at all. It is one of 5 things it had to prove to win.

Now, instead of having to prove all 5 at the trial, it ONLY has to prove one. That's a big win for Dominion (and a big loss for Fox).

The NBC focus on Fox having to go to trial is incompetence. On a case of this magnitude, it is nearly unheard of for the defendant to win on summary judgment. So for all practical purposes, Fox was always going to have to go to trial.

But at trial, Fox now only has a single way of escaping liablity. Before this ruling, it had 5 different ways it could have escaped.

[LiberalLovinLug]

55. Thanks!

[whopis01]

44. No. It is the opposite of that.

Dominion had to prove two things
1) Fox lied
2) Fox acted with malice

The judge has said Dominion already proved #1 and there is no need to hold a trial. The trial only needs to cover part 2.


Basically Dominion has always needed to win 2-0 to prevail. The judge has now said the score is 1-0 before the trial even begins.

[LiberalLovinLug]

54. Ah okay thanks!

[Ms. Toad]

56. There are actually 5 or 6, depending on how you count them,

things which Dominion had to prove. The judge said Dominion has already proved 4 or 5 (again, depending on how you count the elements).

So even better - Dominion's score is already 4-0 (or 5-0).

[Ms. Toad]

26. The practical implications are that Dominion will have a much easier time at trial.

Instead of having 5 things to prove, they only have to prove one.

Everyone is entitled to their day in court. Summary judgments are a shorcut that can be used when things are so clear-cut that a full trial is not needed. Winning on summary judgment (and avoiding trial) is uncommon - there are usually two sides to a story, and the purpose of a trial is to sort out which story is correct.

If the whole thing had gone to trial, Dominion would have had to put on a case (provide evidence) that:

1. Fox said things about Dominion to other people (published a statement)
2. They said them in a way that identified Dominion to people who heard the things they said (of and concerning Domion)
3. an ordinary person would find the statements offensive (defamatory statement about Dominion)
4. That, at the time the statements were made Fox knew they were false - OR - didn't use reasonable care to check it out (with malice)
5. That the statements harmed Dominion (OR fell into a category that is intrinsically harmful - such as talking trash about your business. (which harmed Dominion)

Both parties applied for a short-cut to the trial (summary judgment).

Dominion said all of the pre-trial paperwork it submitted proved all 5 of them so it wins, no need for a trial.
Fox said Dominion could not possibly prove at least one of them, so it wins, no need for a trial. (It only has to knock out one to win without a trial.)

As to elements 1, 2, 3, and 5, the court said that there is disputed evidence - OR - Dominion wins
As to #4, it said there was evidence going both ways - so they still need a trial.


No impact on Fox how, since Dominion hasn't yet proven all 5 elements. But at trial, Dominion gets the advantage of the shortcut and now only has to prove one last thing. Fox lost bigly. But its loss wasn't that it had to go to trial - the focus of the NBC article (that was pretty much a given). It was that instead of having 5 potential get-out-of-jail-free cards, it is down to its last card.

[TheRickles]

30. Thanks for the clarification - your expertise is much appreciated.

But if Dominion isn't able to prove that 5th element, will there be any penalty to Fox? Or would there be no impact on Fox if only these four things are decided in Dominion's favor?

[Ms. Toad]

34. Fox wins if Dominion can't prove the 5th element.

Taking it out of the context of a lawsuit - think of anything which has several criteria that have to be met.

For example, to get a driver's license you have to (1) pass a written test, (2) pass a driving test, and (3) be 16 years old (or whatever it is in your state).

If you get 100% on both the written test and the driving test, they still aren't going to give you a driver's license if you are only 5 years old.

If Dominion only proves 4 of the things it has to prove, Dominion doesn't get money from Fox.

It's just a whole lot easier for Dominion now, since the court ruling says it has already proven 4 things - and now only has to prove one. but it can't win without proving that last thing, any more than you can get a driver's license without all 3 things.

[orleans]

33. thank you for explaining this

much appreciated

[Ms. Toad]

35. You're welcome.

I'm kind of a legal process nerd, and it drives me nuts when reports assigned ot the legal beat get it so wrong!!

[orleans]

38. definitely comes in handy here (at least for people like me who don't know the ins and outs) nt

[Kaleva]

37. Thanks!

[whopis01]

43. That was always the case

In order to prevail, Dominion had to show that
1) Fox made false statements about them
and
2) Fox acted with malice


The judge has said there is no need to go to a trial for part 1. He has ruled in Dominion’s favor.

So while this doesn’t change anything yet - it removes one hurdle for Dominion. However proving malice was always the bigger hurdle.

[Fullduplexxx]

45. They're a fox Station now so this is not a surprise

[brooklynite]

46. CNN: " major decision dismantling key Fox defenses"

Can someone explain this “CNN has gone right-wing” rant again?

Dominion’s historic defamation case against Fox News will go to trial, judge rules, in major decision dismantling key Fox defenses

Dominion Voting Systems’ historic defamation case against Fox News will proceed to a high-stakes jury trial in mid-April, a Delaware judge ruled Friday, in a major decision that dismantled several of the right-wing network’s key defenses.

The judge’s decision is a painful setback for Fox News and sets the stage for an agonizing, weekslong trial, where the network’s highest-ranking executives and most prominent hosts could be called to the stand to testify about the 2020 election lies that were promoted on its air.

Both sides had asked Delaware Superior Court Judge Eric Davis for a pretrial ruling in their favor, declaring them the winner. After thousands of pages of filings and exhibits, and a series of courtroom clashes, Davis decided the case should go to trial. But one question jurors won’t need to weigh, he concluded, was whether Fox’s claims about Dominion were true or false.

“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,” Davis wrote.

https://edition.cnn.com/2023/03/31/media/fox-news-dominion-lawsuit/index.html

[Lovie777]

4. K&R......

[Johonny]

5. Hunter Biden, Hillary Clinton, the January 6th police officers . . .

Come on down and start suing. The lie on purpose and its time to bankrupt them for it.

[malaise]

7. Great News

Rev

[ColinC]

8. Sucking up to trump is proving it could be quite expensive, it seems

[TeamProg]

10. K&R Thanks for posting. n/t

[CatWoman]

11. Fox News Suffers Major Setback in Its Defamation Case

https://archive.ph/uVSzZ#selection-355.0-355.53

[nattyice]

14. It's the Age of Aquarius, folks!

[Norbert]

15. March goes out like a lion this year.

I will be breaking out another microbrew soon in celebration.

[Hortensis]

16. Summary judgement for all claims except malice, which continues to trial.

Fantastic news! What it should be, of course.

The bad guys lose.

[Alexander Of Assyria]

22. It's a legal triumph, lawyers dream verdict before trial.

[Hortensis]

23. :) Hadn't thought of "dream verdict." I guess they'd start with guilt

already established and, with all that complex and obfuscating business disposed of, be able to focus on the evidence for malice?

Whatever, the happier they are at this point, the happier I am.

[Alexander Of Assyria]

24. Yes, exactly...focus on the malice...Fox reeks of malice...jury will have to hold their noses

until they deliver the final blow.

Please please don’t settle! Democracy is at stake, not just money.
P.s. fox hiding their hate and racism behind the shield of the first amendment makes me gag.

[Ms. Toad]

40. Reeking is not the definition of malice, as it pertains to defamation.

Malice - as to defamation - means that Fox knew the statements it was making were false at the time they made them, or were reckless in not checking to make sure they were true.

The jury will need to be able to follow fairly complex arguments about who knew what, when, and whether that knowledge can be attributed to the corporations (not the individuals) that were sued.

[Hortensis]

42. Plus 1000 to those. Maybe this will be begin a

new vulnerability to accountability in influence operations.

[Ms. Toad]

31. No. Guilt is not already established.

First - guilt is a criminal concept and not relevant in a civil case.

But assuming you mean liability (the corresponding civil concept) - liability is not yet established, BUT Dominion has a much easier path to get there.

To establish liability for defamation, the plaintiff has to establish 5 things at trial. This summary judgment gives them the win on 4 elements. All but the 5th element of malice.

So you are correct that the trial will focus on malice - but if they cannot establish malice, Fox will have zero liability.

[ShazzieB]

17. COOL!

I don’t have to read all of this right now, but it sounds great!

[soldierant]

18. actual malice --

defined as “with knowledge that it was false or with reckless disregard of whether it was false or not.”
Link https://www.mtsu.edu/first-amendment/article/889/actual-malice#:~:text=Actual%20malice%20is%20the%20legal,lawsuits%20against%20the%20news%20media.

I don't think the plaintiff will have much trouble proving this.

[Alexander Of Assyria]

21. Reckless disregard for the truth or actual malice...is Fox motto! So yes, should be only matter

of how much very 😷 ill gotten gain Fox has to cough up.

[soldierant]

29. In everyday life, we tend to think of malice

as a feeling. And proving feelings borders on the impossible.

But this legal definition - with all those text messages and emails, this looks to me like a slam dunk.

[Ms. Toad]

36. Not a slam dunk.

The problem is that all of those text messages and emails are between actual people, nor corporations. What was sued was the corporation.

So the trick is going to be deciding who is responsible for the corporate state of mind and tying all of the correspondence to the corporation (rather than the individuals for whom we have better evidence).

I think they will get there. But its not a slam dunk. (If it was a slam dunk, they would have won summary judgment on that element, as well.)

[soldierant]

50. The ones which will really matter

are those from folks in the chain of command oulling rank. Like the magaer who said whe was fed up with reporters who didn't understand what the viewers wanted, and cost the corporarion25 million.

[Ms. Toad]

51. The higher up, the easier it is to tie personal knowledge to corporate state of mind

(as a general rule).

[soldierant]

52. Yes. And I believe they have some from Rupert.

[Artcatt]

20. Liquify faux "news," move the Simpsons to Netflix. Win-Win.

[KY_EnviroGuy]

25. When you're caught with the smoking gun in your hand.....

you may feel the sting of a summary judgment impaled up your guilty ass.......

----------------

[Upthevibe]

27. Kick. N/T

[Downsouthjukin]

32. Good News

just keeps on coming!!!

[maxrandb]

41. This is good news! Now go after Sinclair and I-Heart Radio

and EVERY local Hate-Radio station that also defamed Dominion

[republianmushroom]

47. like it

[Aussie105]

48. Basically . . .

Fox said that the Dominion machines were rigged to favor the Democrats, based on the 'fact' that someone else on Fox said it was true without proof.

Always pushed as fact, but never with proof.

Pushed because it suited the Fox agenda, now if that is not malice, I obviously don't know the true meaning of the word.

Fox treated this topic as a circle jerk, in short.

Time to pay the price of your arrogance Fox!

[LPBBEAR]

49. I hope.....

George Soros takes inspiration from this and also sues numerous RWNJ SOB's into oblivion. He must be tired of being the goto punching bag for all these lunatics. He has the money to hire the best lawyers in the country. Go for it George. Empty their "piggy" banks.

[friend of a friend]

53. I clicked on law and crime; it told me to go home.