Fox News personalities face questioning as Dominion lawsuit moves forward

Next week, Maria Bartiromo will join the parade of Fox personalities who are being called to answer questions in Dominion Voting Systems’ defamation lawsuit against the network. 

Bartiromo, the anchor of Fox programs “Mornings with Maria” and “Sunday Morning Futures,” is slated to appear for a deposition on Sept. 8, according to court filings. 

In recent days, Sean Hannity, Tucker Carlson and Jeanine Pirro were among the network hosts scheduled to appear for questioning in Dominion’s lawsuit, which is seeking $1.6 billion in damages from the cable news network. Dominion has argued that Fox Corp.‘s Fox News and Fox Business made false claims that its voting machines rigged the results of the 2020 election between Donald Trump and Joe Biden. Top brass Rupert Murdoch and Lachlan Murdoch are also expected to be deposed since the parent company has been sued, too.

The case is being closely watched by First Amendment experts and advocates in part because of Dominion’s lengthy list of examples that Fox network hosts repeatedly made false claims, even after the facts came to light. Libel lawsuits are often centered around one falsehood, and media companies are broadly protected by the First Amendment.

Such cases are usually settled out of court or dismissed quickly by a court judge, experts say. But in December, the Delaware judge overseeing the Dominion case denied Fox News’ request to have the case dismissed.

Neither side has shown signs of entering discussions or reaching a settlement, according to people familiar with the matter, although that could change before the trial’s expected start in April. Fox has vigorously denied the claims.

“Fox has put forth a First Amendment argument that this defamation case is aimed at punishing their speech and journalism, and this is an important component of their argument,” said Roy Gutterman, an expert on communications law and free speech at Syracuse University’s Newhouse School of Public Communications.

But Gutterman said those rights can be limited “by the concept of falsity, especially if it can bring harm to an individual or business.” 

The depositions are private, as are the documents that Dominion has been collecting through the discovery process. Fox has asked the court to keep all of the collected materials private, claiming that Dominion mischaracterized what the documents show as actual malice.

In court papers, Dominion has pointed to the rhetoric of hosts like Bartiromo, a former CNBC anchor, and former host Lou Dobbs and that they continued to feature guests – including Trump attorneys Rudy Giuliani and Sydney Powell – who made false claims that voter fraud was the reason Trump didn’t surpass Biden to win the 2020 election. Dobbs was also previously scheduled for questioning, filings show. 

“Fox, one of the most powerful media companies in the United States, gave life to a manufactured storyline about election fraud that cast a then-little-known voting machine company called Dominion as the villain,” the company said in its initial court filing in March 2021.

Fox News’ legal team recently added veteran trial attorney Dan Webb to its roster. Webb told the Washington Post earlier this week that Fox News was only reporting on the news and claims being made by Trump’s allies. 

“We are confident we will prevail as freedom of the press is foundational to our democracy and must be protected, in addition to the damages claims being outrageous, unsupported and not rooting in sound financial analysis, serving as nothing more than a flagrant attempt to deter our journalists from doing their jobs,” a Fox News spokesperson said in a statement. 

To win a defamation case, a plaintiff needs to show that the individual or business they’re suing made false statements that caused harm, and that it acted with “actual malice,” meaning the speaker knew or should have known what they were saying wasn’t true. 

“A key issue in these depositions will be the state of mind of Fox as embodied by the journalists covering this or commenting on it,” said Floyd Abrams, a prominent First Amendment attorney. “What will someone like Lou Dobbs say? Will he say he believed what he was saying beyond simple reportage?”

Dominion said in court papers that it repeatedly sent emails to notify Fox News that its anchors and their guests were making false claims – and that Dominion had “independent fact-checkers, government officials and election security experts” that quashed those claims. 

Other current and former Fox News executives have been called on for depositions, court filings show.

Dominion has also filed lawsuits against the TV networks One America News and Newsmax. Another voting machine maker, Smartmatic USA, has made similar claims in a defamation lawsuit against Fox News that alleged Dobbs and other hosts falsely accused the company of helping to rig the election. A New York judge earlier this year denied Fox News’ motion to dismiss the lawsuit.

Shortly after Smartmatic filed its lawsuit, Fox News canceled Dobbs’ weekday business show, “Lou Dobbs Tonight.” Fox has previously said the move to end Dobbs’ program was in the works prior to the lawsuit.