*Published with generous permission from Teri Kanefield. Read her full blog here.
As you may have heard, there were a few bombshells in Dominion’s latest filing in the Dominion v. Fox defamation case.
To recap: We are at the stage where both Dominion and Fox are asking for summary judgment. You get a summary judgment if there is literally no evidence or argument the other side can present that will allow them to prevail, so the case can be decided without a trial.
(A trial is for finding the facts. If no facts are in dispute, if it’s just a matter of how the law should be applied, you don’t need a trial. A judge can do that.)
As you can imagine, it’s hard to win on a summary judgment motion. If you move for summary judgment, the court will assume that every fact alleged by your opponent is true. The idea is that even if everything they say is true, they still lose.
Fox moved for summary judgment, alleging that all they did was report what was newsworthy, namely that a sitting president alleged voter fraud. Basically, Fox argued that their commentators simply put forward the president’s claims, which they had a right to do as a news network.
Well, apparently, Rupert Murdoch conceded “half of what Trump was saying was bullshit and damaging.”
Murdoch admitted he knew there was no election fraud and that Fox hosts endorsed the election lies. Here is a snippet from Murdoch’s deposition:
Q: You are aware now that Fox did more than simply host these guests and give them a platform; correct?
A. I think you’ve shown me some material in support of that.
Q. In fact, you are now aware that Fox endorsed at times this false notion of a stolen election?
A. Not Fox, No. Not Fox. But maybe Lou Dobbs, maybe Maria, as commentators.
Q. We went through Fox hosts Maria Bartiromo.
A. Yes. C’mon.
Q: Fox host Jeanine Pirro?
A: I think so.
Q: Fox Business host Lou Dobbs?
A. Oh, a lot.
Q: Fox host Sean Hannity?
A: A bit
Dominion thus argued that executives of Fox News Network and Fox Corporation “knowingly opened the airwaves to false conspiracy theories about Dominion.”
Murdoch kept trying to distinguish Fox News Network and Fox Corporation, which he claims did not endorse the lies, from the commentators, who did:
Q: About Fox endorsing the narrative of a stolen election; correct?
A. No. Some of our commentators were endorsing it.
The problem, as Dominion argued in its brief, is that anyone who “participated” in the lies is responsible, and Dominion asserts that everyone in the chain of command “participated” because they knew it was wrong and they had the authority to stop it, but didn’t. Heck, the highest-ranking lawyer in the Fox Corporate structure even admitted as much. From Dominion’s filing:
“Viet Dinh, the highest ranking lawyer in the Fox corporate structure admitted that if people in the chain of command who had the power to exercise control over the shows knew the allegations were false, they had an obligation to stop it.”
The filing shows the top people at Fox were basically in WTF mode as Trump insisted on lying and their commentators insisted on repeating the lies.
Startling moment: To show how chummy Rupert Murdoch was with the Trump team, we get this clip:
During Trump’s campaign, Rupert provided Trump’s son-in-law and senior advisor, Jared Kushner, with Fox confidential information about Biden’s ads, along with debate strategy.
Me: “Wait, what?” Debate strategy? Telling Kushner?
(If you’re wondering, yes, Fox likely violated 52 U.S.C. § 30118 (illegal corporate contributions) and 11 C.F.R. § 114.2 (illegal electioneering). Media Matters and End Citizens United PAC thus filed complaints with the FEC.)
Right after the election, Rupert Murdoch called Mitch McConnell and urged McConnell to ask other senior GOP officials not to endorse Trump’s election lies:
Rupert testified that he was very much aware, that Trump was not happy with Fox’s Arizona call. Rupert also called Mitch McConnell immediately after the election and thought it was “probably true that during that call Rupert urged him to ask other senior Republicans to refuse to endorse Mr. Trump’s conspiracy theories and baseless claims of fraud.”
Fox knew they’d get hit “hard from the right” for calling the election for Biden after Arizona. Fox executives thus monitored the negative backlash the network received after calling the election for Biden:
Fox’s call of Arizona for Biden also set off a flurry of negative conservative commentary and viewer backlash. Fox Corporation executives were well aware. Lachlan discussed viewer backlash with Scott after the call was made. Indeed, Fox Corporation had an entire Brand Protection Unit led by Fox Corporation Senior Vice President Raj Shah that was tasked with monitoring and mitigating criticisms of Fox.
Murdoch testified that he likes news and keeps a close eye on what the Fox news network is doing and, by November 5, was already worried about the election fraud lies:
On November 5. Former Trump adviser and election conspiracist Steve Bannon appeared on Maria Bartiromo’s show claiming that “President Trump won an overwhelming victory on Tuesday night.” Allan the editor of the New York Post, another media entity controlled by the Murdochs, alerted Rupert to the clip and added, “Wow.” Murdoch then called Scott and asked to see the clip. Scott dutifully complied. At this point, Rupert was concerned about making false claims of election fraud. Meade Cooper, Fox’s Executive Vice President of Primetime Programming, admitted Fox News Network executives were too.
When Hannity told the audience that “it will be impossible to know the true, fair, accurate election results,” Executive Vice president Viet Din told two other Fox executives: “Let’s continue to buckle up for the ride for the next 24 hours. Hannity is getting awfully close to the line with his commentary and guests tonight.”
Initially, the top people at FOX agreed that if Trump refused to concede, Sean should not go down the same path. Then, when the backlash kept getting worse, the top executives worried about losing viewers to Newsmax, so they change their strategy: They would go forward with the lies and phrase it as reporting the news, even though they knew it wasn’t.
I’d love for someone to show Trump the part where Murdoch told Allan that “with several states now disappointingly favoring Biden, hard to claim foul everywhere” and that “half of what Trump was saying was bullshit and damaging?” Can you imagine how he’d react?
And how would Rudy Guiliani feel about Allan of the Post saying that Rudy was “unhinged” and the “booze” was getting to him?
“Enough with the facts! Let’s get to the law,” says law nerds everywhere. Okay, the law: Dominion accuses Fox of wanting the court to carve out a rule that grants immunity for publishing statements that the publisher knows to be false, as long as the allegations are newsworthy. Dominion says nope. The rule was given by the Supreme Court in New York Times v. Sullivan: press loses protections under the First Amendment when they publish a statement “with the knowledge that it was false or with reckless disregard of whether it was false or not.”
Murdoch testified that “with respect to the lies around the 2020 Presidential Election, I would have liked us to be stronger in denouncing it, in hindsight.”
Funny how a $1.6 billion lawsuit plus punitive can improve a person’s hindsight.
One of my readers on Mastodon asked this question:
Given how crazy fox news is, why would Rupert care about what the network reported about Arizona or if stolen election claims were false? It just seems weird where Fox draws the line.
It was clear that Trump’s reason for putting forward these lies was that he wanted to hold on to power. Keeping Trump in the White House after he lost the election would make him a dictator.
(People often use the phrase ‘above the law’ incorrectly. A person is not ‘above the law’ if they committed a crime and, for some reason, wasn’t caught or wasn’t charged. A person is above the law when the law does not apply to that person. When we say ‘nobody is above the law,’ we mean that the law applies to everyone.)
Keeping Trump in the White House after he lost the election would put him above the law. After that, he would be untouchable.
Look at it this way: Right now, Rupert Murdoch has a lot of power. If he makes Trump dictator, he loses his power. Murdoch wants a Republican in the White House who has to do what Murdoch tells him to do. He doesn’t want a dictator in the White House telling Fox what to do.
This was the same argument I offered in November of 2020 when left-leaning Twitter was 100% persuaded that the reactionary Supreme Court would agree with Trump’s election fraud claims and keep him in power. I said no. The reactionary Supreme Court wants America to be a Christian nation, but right now, the Supreme Court has a lot of power. If they kept Trump in office even after he lost, there would be nothing to rein Trump in. If, for example, Trump got angry at a Supreme Court justice and incited a mob to attack that justice, nothing would be done because he would control the DOJ. The Supreme Court was aware of this. It was not in their best interests to make Trump a dictator.
I suggest that, similarly, making Trump a dictator was not in Rupert Murdoch’s best interest.
All of this got me thinking about this 2022 New York Times expose piece on what Fox calls their “minute-by-minutes rating data,” which is the real-time audience ebb and flow. (If you click here you can read the New York Times article free through my subscription.)
Basically, Carlson adjusts what he says to get the most reaction from his audience.
Whatever is most outrageous and tripping, Carlson amplifies. So it isn’t like Carlson shapes the views of his audience. His audience dictates what Carlson says.
This is similar to social media algorithms that tend to amplify the most fear-inducing rage-inducing despair-inducing posts. In other words, social media algorithms function like Fox’s minute-by-minute ratings. (I often quote Facebook whistleblower Francis Haugen who explained that Facebook algorithms incentivize “angry, polarizing, divisive content.”) We’ve all seen it happen on social media.
You can see why Fox executives found themselves in a pickle: Their audience craved the lie that Trump won, but it was not in the best interests of Fox to install Trump as a dictator. They needed to give the audience what the audience demanded, but they really didn’t want to fully endorse the election lies, so they did things like ask McConnell to get the top Republican leaders to denounce the lie. That way, Fox wouldn’t have to do it. They could simply report what the Republican leaders were saying.
Q: Why does the Fox audience demand lies?
A: The lies destroy and they want to destroy.
Sociologists Oliver Hahl, Minjae Kim, and Ezra W. Zuckerman Sivan, in “The Authentic Appeal of the Lying Demagogue,” explain that those who want to destroy the “political establishment” willingly embrace a liar because they understand that the lies themselves serve a destructive purpose—and they want to destroy the political establishment because they no longer believe the government represents them.
This is why the South wanted to secede from the Union. It’s why the Proud Boy attacked the Capitol on January 6. Same stuff. In other words, what we’re witnessing has deep roots in American history.
Historian Richard Hofstadter, in his classic 1964 work, The Paranoid Style In American Politics, offered an eerily accurate description of this desire to destroy.
Hofstadter conducted a thorough review of American politics from before the founding of the nation through McCarthyism and noticed a pattern among a small impassioned minority on the fringes of the political spectrum.
He called their behavior the “paranoid style” in politics. During the McCarthy era and then the Goldwater campaign, Hofstadter concluded that paranoid elements were no longer contained on the fringes. After Goldwater’s defeat, Hofstadter noted that some of the worst distempers of American democracy had become “a formidable force in our politics” and, quite possibly, a permanent one.
Those embracing the paranoid style of politics believe that unseen satanic forces are trying to destroy something larger to which they belong. According to Hofstadter, the “something larger” to which they belong is generally phrased as “the American way of life.”
They “feel dispossessed” and that “America has been largely taken away from them and their kind.” They are “determined to repossess it and prevent the final act of subversion.”
They, therefore, adopt extreme measures. They will stop at nothing to prevent what they see as an impending calamity. These apocalyptic warnings arouse passion and militancy: The evil enemy must be destroyed—and the fight must go beyond the ordinary “give and take” of politics. In other words, to beat this enemy, they have to break a few rules.
In 1992, Newt Gingrich captured this frustration—and call to militancy—when he said Republicans must resort to any means necessary. “Any means necessary” can mean firing on Fort Sumter. It can mean lying about the results of an election.
Remember how McCarthy turned over all that January 6 surveillance footage to Tucker Carlson? Well, Carlson will report the conclusion to his “investigation”:
I told you here that the Dominion lawsuit might hurt Fox, but it will not stop the rise of fascism. A lawsuit can’t do that.
If you’re still feeling stumped about why Tucker Carlson continues lying even as the network is hit with a $1.6 billion + punitive damages lawsuit, consider how many left-leaning people wanted to see the DOJ and Democrats break and bend rules to make sure they win the fight against fascism. Aren’t these things really the same: “You can’t go by the book when the book is burning,” and “The Republicans lie and cheat while Democrats tell the truth and play by the rules. The stupid Democrats are bringing a knife to a gunfight.”
Cynicism also plays a part in this. A cynic thinks that everyone lies and cheats. If everyone lies and cheats, the winner is the best liar and the best cheater. The reasoning goes like this:
“Trump is a liar and a cheater, but he’s our liar and cheater. We need Trump to beat the lying cheating Democrats.”
My counter-argument to those who say Democrats need to bend a few rules: If the Democrats start lying and cheating, the cynics will be right: It will mean that everyone lies and cheats so the winner is the best liar and best cheater. The problem of course, is that the real fascists will win because they will always be able to lie and cheat better than people who, by nature, don’t lie or cheat.
In other words, you can’t out-fascist the fascists.
Okay, Teri. So what do we do? How do we beat fascism?
First, read last week’s blog post about Thurgood Marshall, then this to-do list. You can report back for your quiz. (What? You didn’t know there would be a quiz?)