In order to be successful, Fox News had to look like a normal news network. This always caused problems, because its bread-and-butter was as a conservative thought leader. But there are a lot of conservative thought leaders. What set Fox apart was that it hired actual journalists to report the news, in addition to its lineup of Hannity and Carlson.
When you hire journalists to report the news, they will tend to behave like journalists and not right-wing bloggers. They will try to report factually. It might be with a right-leaning tilt, but they by and large behave like journalists and don’t invent things.
So on election night, 2020, when the Fox election team was looking at returns, they decided that Biden had won Arizona. They were behaving like normal data journalists. This is what our models show, Biden has won, end of story. This set off an explosion inside the opinion precincts of Fox and angered many viewers, because Trump was pushing the narrative that Arizona was still in play.
Then, when the Trump narrative shifted to the stolen election, the tension at Fox got even worse. The journalists started pushing back, saying there was no proof. The audience, which had been primed for years to distrust the “mainstream media” and to believe only Fox, now was watching Fox reporters reporting that there was nothing to this stolen election thing. And so they started changing the channel and going to right-wing outlets that were pushing the stolen election narrative.
And this caused even more explosions inside Fox, because ratings were sinking.
All of this was inevitable. Fox was trying to do two incompatible things. That was actually at the heart of its business model, and the thing that made it successful for so long. It looked like a regular national TV news network, but its hold on its audience was a strong right-wing message. That could have gone on indefinitely except for Donald Trump. Trump applied enormous pressure to this business model by claiming that the election was stolen. And his people wanted to get on TV to push this narrative. That was essential. Trump and his circle needed to get this claim constantly in front of the Fox audience, because the Fox audience was really Trump’s base. So Fox was a critical communications channel. And, initially, Fox went along, putting on Trump folks who were accusing Dominion of participating fully in this stolen election conspiracy. That was Fox’s big mistake, and the journalists – remember the journalists – realized it right away. Because they were trained in the fundamentals of libel and defamation, they knew immediately that Fox News was on very thin ice in helping to promote these attacks on Dominion.
And these journalists refused to participate in these attacks, and started challenging them on the air.
Crazily, top executives and talent at Fox were feverishly texting and emailing about all this. Media people are trained in communications law courses to stay the heck off email and text messages when discussing stories among themselves. These things are archived a long time. Do not make it easy for some future plaintiff’s lawyers. And it is these texts and emails that will be the foundation of Dominion’s lawsuit. The burden that Dominion faces is proving that Fox executives and people like Hannity knew that the stolen-election claims were false. That the Fox people let Trump folks go on the air and make these claims despite knowing that they were false. That they were helping Trump’s folks spread these falsehoods despite believing that they were baseless. That is the essence of malice in libel and defamation cases. That you broadcast or published something defamatory you knew to be false. You didn’t make an innocent or careless mistake. You spread a defamatory or libelous falsehood deliberately, with prior knowledge that it was false. That is how you get hit with big damages in cases like this.
What put Fox in this box was its reaction to its own journalists’ reporting, and concerns about lower ratings. That is what triggered all the emails and text messages that Dominion’s lawyers have been vacuuming up in pre-trial discovery. Also what did this was its impulse to follow Trump down the stolen-election rabbit hole because it thought it needed to follow its audience down that rabbit hole.
But its audience wasn’t in legal jeopardy,, Fox was. The audience could think all the stolen-election conspiracy theories it wanted to, without consequence. But Fox couldn’t. Once it started following its audience in that direction, it got in dangerous legal territory. Too late, after Jan. 6, Fox realized, like Wile E. Coyote, that it had run past the edge of the cliff and tried to get back to solid ground. By then, however, the damage was done. The only thing that might have mitigated that would have been Rupert Murdoch himself going on the air for two hours explaining why the election was legitimate, with Fox’s own data analysts and reporters walking viewers through the factual record. Maybe with a guest appearance by Dominion explaining how voting machines work and the safeguards.
Of course, that would have been the end of Fox News. Instead, Fox tried to edge very gradually away from the stolen-election crowd and pretend that there was nothing to see here, and nothing had happened for the previous three months. Which didn’t work, because Dominion was loaded for bear. So now, more than two years later, Fox emails and text messages and depositions are showing up in court filings,, laying bare what was happening inside the network from November 2020 through January 2021. Many books will be written about what Fox did during this period, and we haven’t even gotten to the trial, when a parade of Fox executives, reporters, and personalities will be put on the stand, under oath, to answer difficult questions about what was said about Dominion on Fox. And why Fox let it go on.
This will probably go on for weeks, if not months, and will get massive coverage, as some very well-known folks testify. What we know now, thanks to the Dominion filings, is probably only 10 percent of what will come out. Perhaps the most important point that will be reinforced in this trial is that Fox didn’t believe the election was stolen. Fox people will be asked that question, and if they try to waffle, Dominion lawyers will helpfully refresh their memories with emails and texts and deposition testimony. Did you believe the election was stolen? No, will be the answer given repeatedly, because that’s what they already said in emails and texts and depositions. This may be a little jarring to the Fox audience, because in November and December 2020 and especially January 2021, they were being told on Fox that the election had been stolen and Dominion was one of the culprits. But in the trial, they will hear these same Fox folks admit under oath that they knew that wasn’t true. They did not believe what they were telling the Fox News audience. They did not believe what was an article of faith in the Fox News world. Not at all.
And so, if Fox News broadcast something so important that it knew to be false, what else is Fox News broadcasting that it knows to be false? How can we believe Fox News if it would deliberately mislead us? That is kind of what Jan. 6 rioters asked themselves as they stood to be sentenced. Trump told us we were saving the republic, and now I’m going to prison and my life has been ruined. Fox and Trump have had a shared business model, and a lot of folks have gotten caught up in it. Some of the accounting will be in the Dominion case.