Fox News Media Motion To Dismiss Dominion Lawsuit
Fox News Media Motion To Dismiss Dominion Lawsuit
A free press must be able to report both sides of a story involving claims
President of the United States and his legal team challenge a presidential election in
litigation throughout the nation, the media can truthfully report and comment on
those allegations under the First Amendment without fear of liability. Plaintiffs’
defamation lawsuit against Fox News threatens to stifle the media’s free-speech right
Fox hosts did not create allegations against Dominion, which predate the
November 2020 election. In 2019 legal claims (Ex.A1) still pending, Georgia voters
federal Judge Totenberg credited testimony in that case from an “array of experts
and subject matter specialists [that] provided a huge volume of significant evidence
regarding the security risks and deficits in the [Dominion] system.” Curling v.
Raffensperger, 493 F. Supp. 3d 1264, 1278 (N.D. Ga. 2020). The court warned that
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found “neither hypothetical nor remote.” Id. at 1340-41. During a subsequent PBS
interview, one of the challengers’ experts “worried” that Dominion’s system “is the
A week later, Fox called Arizona before any other network, and Fox then
called the election for now-President Biden the same day as other media. That call
was disputed: President Trump and his legal team quickly challenged the election
results in lawsuits across the country. Instead of shying away from reporting these
controversies, Fox fairly and extensively covered them just as it had reported the
election results. As responsible journalists, Fox covered both sides. The American
people deserved to know why President Trump refused to concede despite his
apparent loss.
The news media has the right in a democracy to inform citizens by reporting
elections. The President and his legal team filed multiple lawsuits alleging, like the
2019 Curling claims, that voting systems like Dominion’s could be manipulated to
alter votes. Many doubted these allegations. Others, like the Curling challengers,
continue to express concerns. Fox and other media throughout the world truthfully
reported the newsworthy claims by President Trump and his legal team. Fox hosts
Rudy Giuliani and Sidney Powell, for evidence substantiating their allegations.
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Dominion accepted Fox’s offer to appear on air, vigorously disputing the claims.
Hosts reminded viewers of Dominion’s denials. And some shared opinions about the
allegations.
That is natural under the First Amendment, which protects news reporting
essential for “uninhibited, robust, and wide-open” debate. N.Y. Times Co. v.
Sullivan, 376 U.S. 254, 270 (1964). Fox had a free-speech right to interview the
President’s lawyers and surrogates even if their claims eventually turned out to be
protections for the free press thus should be dismissed—for two primary reasons.
Amendment and New York free-speech doctrines each independently protect media
the President and his legal team. It was a newsworthy “fact” that the sitting President
the obligation to truthfully report allegations with a purported requirement that the
media rebut their underlying falsity. No such duty exists under the First Amendment
or New York law. The press can safely cover both sides and interview newsmakers
without endorsing everything they say. The freedoms of speech and press would be
illusory if the prevailing party could obtain billions of dollars from the press for
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Well-established doctrine protects the media’s ability to report and comment
President and his legal team waged a national litigation battle challenging the 2020
election results, while making the same allegations Dominion complains of in this
suit. When a sitting President and aligned lawyers challenge an election through
litigation, the public has a right to know those allegations and what evidence
supports them. Fox therefore had a broad free-speech right to interview the
their claims.
Second, Dominion fails to plead facts alleging that Fox published the
challenged speech with actual malice—that is, with knowledge or reckless disregard
of its falsity and that the person responsible for telecasting the speech in fact
entertained serious doubts about its truth. At most, Dominion alleges that Fox
refused to stop reporting after Dominion denied their allegations. The U.S. Supreme
There are two sides to every story. The press must remain free to cover both
sides, or there will be a free press no more. Dominion’s $1.6 billion suit against Fox
for covering both sides of this vigorous election dispute should be dismissed.
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NATURE AND STAGE OF THE PROCEEDINGS
March 30, this Court extended Fox’s time to respond to the Complaint until May 18.
D.I.26. Defendant moves to dismiss under Rule 12(b)(6) and N.Y. C.P.L.R.
§3211(g)(1).
BACKGROUND
A. Overview of Dominion.
Ct. App. Div.) (“Dominion Voting Systems is the successor to Sequoia.”). Sequoia
1
New York’s anti-SLAPP pleading standard applies to this lawsuit for the reasons
explained in Fox’s prior motion (D.I.38), which is incorporated here by reference.
This requires consideration of “affidavits” at the pleading stage. N.Y. C.P.L.R.
§3211(g)(2).
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sold Sequoia because foreign ties raised national-security and election-integrity
concerns. Ex.B2-B4.
systems. 2019 Georgia Laws Act 24 (H.B. 316) §18 (codified at Ga. Code §21-2-
opposed the legislation for security reasons, and Abrams’ voting-rights group argued
this legislation wasted money on “hackable voting machines.” Ex.A4. In July 2019,
Georgia awarded Dominion this contract for nearly $107 million. Ex.A5.
Later in 2019, Georgia voters and the Coalition for Good Governance
2
At the pleading stage, the court “may properly consider” a fact subject to judicial
notice, particularly “where a plaintiff has no good faith basis for challenging [its]
authenticity or legitimacy.” In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d
162, 172 (Del. 2006). Judicial notice is proper for all “public documents . . . filed
with government officials,” Doppelt v. Windstream Holdings, Inc., 2016 WL
612929, at *5 n.57 (Del. Ch.)—and “statements and releases” by government
“official representatives,” Jimenez v. Palacios, 2019 WL 3526479, at *2 n.3 (Del.
Ch.), aff’d, 237 A.3d 68, 2020 WL 4207625 (Del. 2020) (TABLE).
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court recognized “[t]he contract was entered at a time when the cybersecurity risks
Dominion’s system, writing that an “array of experts and subject matter specialists
provided a huge volume of significant evidence regarding the security risks and
deficits in the [Dominion] system.” Id. at 1278. One cybersecurity expert testified
swapping or deletion of specific votes cast.” Id. at 1279. Another testified that
Dominion had “‘not permitted[] independent research’” into its system, expressing
The court refused to order any major changes so close to Election Day. See
id. at 1307-12. But it warned that “Dominion’s” system posed “substantial risks and
long-run threats,” and “[t]hese risks are neither hypothetical nor remote”—including
invisible to detection.” Id. at 1312, 1341. The court concluded that “national
‘might this actually ever happen?’—but ‘when it will happen.’” Id. at 1342.
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Media widely covered the Curling litigation and its allegations against
Dominion. For example, USA Today reported that Dominion’s system “had been
rejected by Texas and is the subject of a court battle over accuracy.” Ex.A6.
According to the Washington Post, “election integrity activists say the new
[Dominion] voting machines are unaccountable and unverifiable and have many of
the same security vulnerabilities as the old ones.” Ex.A7. The Associated Press
explained that plaintiffs argue that “voters cannot be confident their votes are
accurately counted.” Ex.A8. The New York Times reported that Dominion’s system
witness for the plaintiffs in the [Curling] lawsuit” saw “the multitude of components
as more vulnerable to attack. Ex. H1. The Atlanta Journal-Constitution stated that
confidence, create chaos at the polls or even manipulate the results on Election Day.”
Ex.A9.
bring “a lot of litigation” challenging the election results. Ex.D1; see D2-D7.
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As promised, the sitting President and aligned lawyers filed multiple lawsuits
lawsuits is attached as Exhibit E. At least one of these lawsuits was pending between
November 2020 and April 2021—the entire timeframe covering Fox’s speech
Ex.E1. On November 11, the campaign filed a lawsuit in Michigan, alleging that
“[t]he Dominion Voting Systems election management system and voting machines
November 17, the plaintiff filed a supporting affidavit claiming that Dominion’s
in Venezuela. Id.
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On November 25, Sidney Powell filed lawsuits in Georgia and Michigan
complaint:
Powell filed more lawsuits in Arizona and Wisconsin. Ex.E7, E8. These
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Dominion sent ballots “offshore” for “algorithmic vote
manipulation.” Id. ¶¶65, 133.
See Ex.E8 ¶¶6-11, 16, 52-62, 70-89, 116, 118, 130 (similar allegations).
The last of these cases did not conclude until April 13, 2021. Ex.E9.
November 9, the U.S. Attorney General authorized all U.S. Attorneys and the FBI
12, the Cybersecurity & Infrastructure Security Agency explained that it too had
General clarified that DHS and DOJ “have looked into” claims “that machines were
programmed essentially to skew the election results,” and “so far, we haven’t seen
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Dominion voting machines. Ex.F2; Compl.¶65. On November 7, Michigan’s
Secretary of State announced that the State’s Bureau of Elections had conducted a
“preliminary review of the issue.” Ex.F3. She further explained that any similar
errors “occur[ring] elsewhere in the state” would be “caught and identified during
the county canvass” process, which was “ongoing” and lasting two weeks. Id.; see
Mich. Comp. Laws §168.822(1). Moreover, responding to allegations that this error
“was part of a larger conspiracy,” the Secretary ordered a hand audit of all Antrim
County ballots to confirm “that the Dominion machines had counted correctly.”
Ex.F2.
week”—the week of November 9—he had ordered “an audit of a random sample of
a hand audit recount of all ballots to confirm the electronic tally. Compl.¶84.
virtually every U.S. media outlet, Fox covered the President’s vote-fraud allegations
and associated lawsuits brought by the President and his supporters. Fox hosts—
including Maria Bartiromo, Lou Dobbs, and Jeanine Pirro—went straight to the
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Rudy Giuliani and Sidney Powell, about their vote-fraud allegations concerning
Dominion. Compl.¶¶17-18, 91, 179.3 During the interviews, Giuliani and Powell
“(1) Dominion committed election fraud by rigging the 2020 Presidential Election;
(2) Dominion’s software and algorithms manipulated vote counts in the 2020
to rig elections for the dictator Hugo Chávez; and (4) Dominion paid kickbacks to
government officials who used its machines in the 2020 Presidential Election.”
Fox also covered the other side of this story. The chart attached as Exhibit G
shows Fox’s coverage of the election-fraud allegations was often quite skeptical. See
Ex.G1-G35. Fox hosts regularly and accurately introduced Giuliani and Powell as
members of the President’s legal team, Compl.¶¶179(a), (c), (h), (j); Ex.I2, I7-I9;
pressed them for supporting evidence, Compl.¶¶179(e), (g), (q); Ex.I3, I4, I13;
informed viewers of Dominion’s denials, Compl.¶¶179(c), (e), (j); Ex.I4, I7, I9; and
called for deeper investigation by authorities, Compl.¶¶179(b), (e), (h), (l), (m), (q);
Ex.I4, I6, I8, I10, I11, I13. Dominion concedes that Fox hosts like Laura Ingraham
and Tucker Carlson expressed skepticism about the allegations against Dominion,
3
As Dominion concedes, even after Powell left the Trump legal team on November
22, she continued pursuing aligned “litigation challenging the 2020 Presidential
Election.” Compl.¶¶17, 91, 93.
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highlighting the lack of supporting evidence. Compl.¶¶68, 136, 181. Dominion itself
appeared on Fox to offer its side: Fox anchor Eric Shawn interviewed on air
ARGUMENT
The parties agree that New York substantive law applies, D.I.40, because New
York has the “most significant relationship” to this “defamation” lawsuit, Stephen
G. Perlman, Rearden LLC v. Vox Media, Inc., 2015 WL 5724838, at *10 (Del. Ch.).
Every challenged telecast came from Fox’s headquarters in New York, where
Plaintiffs fail to state a claim under any applicable pleading standard. Under
actual malice. Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 27
A.3d 531, 536 (Del. 2011). So a fortiori, Dominion cannot satisfy the New York
regarding matters of public concern. Nat’l Fuel Gas Distribution Corp. v. PUSH
Buffalo, 104 A.D.3d 1307, 1309 (N.Y. App. Div. 2013). Under New York law,
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basis in law.” N.Y. C.P.L.R. §3211(g)(1). New York’s anti-SLAPP pleading
standard applies here for reasons described in Fox’s prior motion (D.I.38), which is
Several constitutional doctrines under the First Amendment and New York
law all lead to the same conclusion: Fox’s reporting and commentary on newsworthy
allegations of public concern by the sitting President and his legal team are not
actionable defamation.
First, truthfully reporting newsworthy allegations made by a President and his legal
team on matters of public concern is not actionable. Second, the media has complete
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claim: Both New York law and the First Amendment require a provably false
statement that can “reasonably be interpreted as stating actual facts about” the
plaintiff. Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990); see Brian v.
Richardson, 660 N.E.2d 1126, 1129 (N.Y. 1995). “Mere allegations, rather than
objective statements of fact, are not actionable.” Boulos v. Newman, 302 A.D.2d
932, 933 (N.Y. App. Div. 2003); accord GS Plasticos Limitada v. Bureau Veritas,
39 Misc. 3d 1206(A) (N.Y. Sup. Ct. 2010), aff’d, 84 A.D.3d 518 (N.Y. App. Div.
2011).
President and his legal team is not “reasonably susceptible” of defamatory meaning
when the report does not “represent these quotations as the true facts.” Orr v. Lynch,
60 A.D.2d 949, 950 (N.Y. App. Div.), aff’d, 383 N.E.2d 562 (N.Y. 1978); see, e.g.,
Glob. Relief Found., Inc. v. N.Y. Times Co., 390 F.3d 973, 986-88 (7th Cir. 2004);
Lambert v. Providence Journal Co., 508 F.2d 656, 658 (1st Cir. 1975). Indeed, “a
vast amount of what is published in the daily and periodical press purports to be
descriptive of what somebody said rather than of what anybody did.” Time, Inc. v.
matters of public concern “regardless of the reporter’s private views regarding their
validity.” Edwards v. Nat’l Audubon Soc’y, Inc., 556 F.2d 113, 120 (2d Cir. 1977).
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If “[w]hat is newsworthy about such accusations is that they were made,” truthfully
reporting them is not actionable. Id.; see Greenbelt Co-op. Publ’g Ass’n v. Bresler,
398 U.S. 6, 12-14 (1970). To fulfill its journalistic mission, the media can report
newsworthy allegations of public concern by and about public figures that the media
even knows are “likely false.” Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92,
104-05 & n.11 (2d Cir. 2000). Thus, “in reporting a newsworthy event, the belief or
doubt of the reporter is not important since he is reporting the news event, not
assuming responsibility for the veracity of the quoted remarks.” Orr, 60 A.D.2d at
950; see Campo Lindo for Dogs, Inc. v. N.Y. Post Corp., 65 A.D.2d 650, 650 (N.Y.
App. Div. 1978); DeLuca v. N.Y. News Inc., 109 Misc. 2d 341, 346 (N.Y. Sup. Ct.
1981).
constitutional right to inform the public of the newsworthy allegations made by the
President and his legal team—which were “newsworthy” by the mere fact “that they
were made.” Edwards, 556 F.2d at 120; accord Croce v. N.Y. Times Co., 930 F.3d
787, 793 (6th Cir. 2019). Virtually every major U.S. news outlet—and many
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defamation, media across the world would be too—and that absurd conclusion
legal team is protected. Price v. Viking Penguin, Inc., 881 F.2d 1426, 1434 (8th Cir.
1989). Regardless, Fox fairly covered both sides of the controversy. Fox gave
concedes, Fox informed viewers that Dominion denied them and pressed Giuliani
Dominion claims that Powell and Giuliani were so “facially unreliable” that
Fox never should have invited them on to explain their election-fraud allegations.
Compl.¶¶4, 59, 63, 113, 191, 195. Dominion’s position would unconstitutionally
punish the press for interviewing the sources of these newsworthy allegations. The
press need not “suppress newsworthy statements merely because it has serious
doubts regarding their truth. Nor must the press take up cudgels against dubious
charges in order to publish them without fear of liability for defamation.” Edwards,
556 F.2d at 120. The media’s right to report newsworthy allegations made by a
President and his legal team does not turn on the “trustworthiness or credibility” of
the allegations’ source, given “the public interest in being fully informed about
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public controversies.” Barry v. Time, Inc., 584 F. Supp. 1110, 1126 (N.D. Cal. 1984);
accord In re United Press Int’l, 106 B.R. 323, 329 (D.D.C. 1989).
in litigation until last month, long after the last allegedly defamatory statement
Time, Inc. v. Firestone, 424 U.S. 448, 457 (1976); see Landmark Commc’ns, Inc. v.
Greenbelt, 398 U.S. at 12-14 (city council hearing). New York law likewise
prohibits civil liability “for the publication of a fair and true report of any judicial
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proceeding, legislative proceeding or other official proceeding.” N.Y. Civ. Rights
Law §74. This protection “is absolute, and is not defeated by the presence of malice
or bad faith.” Glendora v. Gannett Suburban Newspapers, 201 A.D.2d 620, 620
Civiletti, 69 A.D.3d 110, 114 (N.Y. App. Div. 2009) (emphasis added). To qualify
only ‘substantially accurate.’” Lacher v. Engel, 33 A.D.3d 10, 17 (N.Y. App. Div.
2006). In other words, this doctrine protects news statements fairly describing
“allegation[s] in the complaint”—whether or not those allegations are true. Id. This
test “admits of some liberality; the exact words of every proceeding need not be
given if the substance be substantially stated.” Holy Spirit Ass’n for Unification of
World Christianity v. N.Y. Times Co., 399 N.E.2d 1185, 1187 (N.Y. 1979).
Yarnall, 764 F. Supp. 853, 856 (S.D.N.Y. 1991) (emphasis added) (citing Branca v.
Mayesh, 101 A.D.2d 872 (N.Y. App. Div. 1984); Ford v. Levinson, 90 A.D.2d 464,
465 (N.Y. App. Div. 1982)). The doctrine also covers “the release of background
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material with regard to the case,” particularly “where the description of the case is
offered by a party’s legal counsel.” Fishof v. Abady, 280 A.D.2d 417, 417-18 (N.Y.
App. Div. 2001). Even “reports that bear a more attenuated relationship to a
the basis” for the allegations Powell and Giuliani made during Fox’s interviews.
election results, and this litigation commenced on November 7. Supra p.8-10. Before
legal team remained “free and safe to announce its position . . . in a forum other than
court.” Hudson v. Goldman Sachs & Co., 304 A.D.2d 315, 316 (N.Y. App. Div.
2003).
As that forum, Fox and the rest of the media cannot be sued for accurately
reporting the attorneys’ arguments. The press may report “background facts” and
not yet filed. Dimond v. Time Warner, Inc., 119 A.D.3d 1331, 1333 (N.Y. App. Div.
2014) (emphasis added); see Freeze Right Refrigeration & Air Conditioning Servs.,
Inc. v. City of New York, 101 A.D.2d 175, 182 (N.Y. App. Div. 1984) (protecting
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report of proceeding before it formally began). Such protection covers positions that
a party “might assert in litigation.” Friedman v. Bloomberg L.P., 884 F.3d 83, 95 (2d
(h), (j), (l), (q). Some explicitly mention affidavits submitted in litigation.
before and after these filings, Powell’s and Giuliani’s statements closely track these
90 A.D.2d at 465); see McRedmond v. Sutton Place Rest. & Bar, Inc., 48 A.D.3d
258, 259 (N.Y. App. Div. 2008). The same goes for the contents of affidavits. See
Russian Am. Found., Inc. v. Daily News, L.P., 109 A.D.3d 410, 413 (N.Y. App. Div.
2013). While the Trump campaign’s initial complaints did not include all the details,
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protected even if it “does not clearly and directly fall within any of the allegations
of the complaint.” Ford, 90 A.D.2d at 465; accord El Greco Leather Prods. Co. v.
Shoe World, Inc., 623 F. Supp. 1038, 1043 (E.D.N.Y. 1985), aff’d, 806 F.2d 392 (2d
Cir. 1986). And the complaints filed in the ensuing weeks included those details,
prescribed duties of a public body.” Freeze Right, 101 A.D.2d at 182. Reporting on
does reporting about FBI and Justice Department investigations. Id.; Fine, 11
F. Supp. 3d at 214; Gubarev v. BuzzFeed, Inc., 340 F. Supp. 3d 1304, 1315 (S.D.
Fla. 2018) (applying New York law). Even “reports on allegations that lead to a
audit. Supra p.12. The U.S. Attorney General acknowledged federal investigations
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already had begun before November 9. Supra p.11. Georgia audited its Dominion
It makes no difference that only “certain parts” of the reported allegations may
have been “subject to official action.” Gubarev, 340 F. Supp. 3d at 1316. “[I]t would
undermine the privilege to require that one who reports on official action tie every
specific allegation in the report to a specific instance of official action.” Id. at 1314.
For example, New York law protected BuzzFeed’s publication of the entire Steele
Dossier, even though the Justice Department and FBI only investigated some of its
allegations. Id. at 1315. The press need not “investigate extensively the
allegation.” Id. at 1317. The same goes here: Because the electronic-vote fraud
and state recounts, Fox could report those allegations without fear of liability.
interviews that would have undermined Powell’s fraud claims. Compl.¶63. But “it
is well settled that there is no requirement that the publication report the plaintiff's
side of the controversy.” Curto v. N.Y. Law Journal, 144 A.D.3d 1543, 1544 (N.Y.
App. Div. 2016); accord Cholowsky, 69 A.D.3d at 115. Regardless, Fox did report
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Dominion’s denials and had a Dominion spokesperson on to report its side of the
Nor does it matter that Fox hosts occasionally offered opinions based on the
remains protected “even though the [publication] may have been embellished ‘with
the fair and expectant comment of the story teller, who adds to the recital a little
touch of his piquant pen.’” Josephs v. News Syndicate Co., 5 Misc. 2d 184, 184 (N.Y.
Sup. Ct. 1957) (quoting Briarcliff Lodge Hotel v. Citizen-Sentinel Publishers, 183
protection.” Milkovich, 497 U.S. at 20-21. Indeed, the New York Constitution
provides “broader protection” for opinion than the First Amendment. 600 W. 115th
St. Corp. v. Von Gutfeld, 603 N.E.2d 930, 934 (N.Y. 1992); see Immuno AG. v.
Moor-Jankowski, 567 N.E.2d 1270, 1277 (N.Y. 1991). In context, even “statements
may thus repeat others’ allegations when opining that the “charges” warrant further
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1131. Reasonable viewers “would understand the statements . . . as mere allegations
In full context, reasonable viewers would understand many of the Fox hosts’
broad “over-all context”: Instead of “isolating and identifying assertions of fact,” the
Court must consider Fox’s coverage “as a whole”—including “its tone and apparent
purpose,” “the nature of the particular forum,” and the “broader social setting.” Id.
at 1129-30.
Fox hosts went straight to the allegations’ source, “an accepted approach” that
allows each viewer “to form his or her own conclusions.” Themed Restaurants, Inc.
v. Zagat Survey, LLC, 4 Misc. 3d 974, 978 (N.Y. Sup. Ct. 2004), aff’d, 21 A.D.3d
826 (N.Y. App. Div. 2005). The hosts repeatedly introduced Giuliani and Powell as
members of the President’s legal team and informed viewers that Dominion denied
their allegations. Supra p.12-13. These surrounding statements make clear that host
commentary reflects their own preliminary opinions based on the allegations, not
information” provides further context showing “that the statements are ones of
opinion.” Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348, 379 (S.D.N.Y. 1998).
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Reasonable viewers also understand many of Fox’s shows as editorial forums
like a newspaper’s op-ed page. They expect hosts to share their personal views “on
“speculation.” Brian, 660 N.E.2d at 1130; see Von Gutfeld, 603 N.E.2d at 936
McDougal v. Fox News Network, LLC, 489 F. Supp. 3d 174, 184 (S.D.N.Y. 2020)
(Tucker Carlson Tonight); see Herring Networks, Inc. v. Maddow, 445 F. Supp. 3d
1042, 1050 (S.D. Cal. 2020) (The Rachel Maddow Show). Hosts are “widely
“controversial current topics of public interest and debate.” Behr v. Weber, 172
A.D.2d 441, 443 (N.Y. App. Div 1991); see Huggins v. NBC, 1996 WL 763337, at
Fox hosts did just that, urging the President’s surrogates to keep “pursuing . . .
the truth,” “straighten[] out” the allegations, and “get[] to the bottom” of them.
Compl.¶¶179(b), (c), (e); Ex.I4:21, I6:31, I7:18. While they expressed concern about
the allegations, the hosts repeatedly called for greater transparency and further
investigation. Compl.¶¶179(b), (e), (h), (l), (m), (q); Ex.I4, I6, I8, I10, I11, I13.
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Interviews expressly addressed whether there was sufficient evidence to warrant
deeper investigation. Compl.¶¶179(g), (h); Ex.I3, I8. And hosts repeatedly asked
Giuliani and Powell for that evidence. Compl.¶¶79(e), (g), (q); Ex.I3, I4, I13. Such
“interrogative language” weighs heavily “on the opinion side of the scale”—to
bringing issues of public importance to the public’s attention and scrutiny.” Ollman
v. Evans, 750 F.2d 970, 983 (D.C. Cir. 1984) (en banc) (plurality op.); see Steinhilber
v. Alphonse, 501 N.E.2d 550, 554 (N.Y. 1986) (endorsing Ollman plurality).
Fox hosts’ calls for truth-seeking are opinion protected by the First
Amendment and New York law. Brian, 660 N.E.2d at 1131. Those calls would make
investigated rather than as facts” about Dominion. Id.; see Silvercorp Metals Inc. v.
Anthion Mgmt. LLC, 36 Misc 3d 1231(A), at *11, *13 (N.Y. Sup. Ct. 2012) (calls
for investigation “signal to the reasonable reader that the statements are non-
actionable opinion”).
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1087, 1094, 1098 (4th Cir. 1993); accord Beverly Hills Foodland, Inc. v. United
Food & Commercial Workers Union, 39 F.3d 191, 195 (8th Cir. 1994). Because Fox
hosts’ statements reveal their “lack of definitive knowledge about” the allegations
against Dominion, Fox’s interviews discussing the allegations are not actionable.
Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1338 (D.C. Cir. 2015); see
Dominion incorrectly alleges that Fox hosts’ remarks are actionable “mixed
opinion.” Compl.¶202. Mixed opinion “implies that it is based upon facts which
justify the opinion but are unknown to those reading or hearing it.” Davis v.
Boeheim, 22 N.E.3d 999, 1004 (N.Y. 2014) (emphasis added). By contrast, Fox hosts
allegations just made in interviews with the President’s lawyers and was thus
“accompanied by a recitation of the facts upon which it is based.” Id. Armed with
those facts, viewers could “assess the basis upon which the opinion was reached in
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B. None of the challenged individual statements identifies actionable
defamation against Fox.
make that clear, this section individually examines each allegedly defamatory
statement.4
Giuliani and Powell). Most of the Fox hosts’ statements that Dominion challenges
are just accurate summaries of newsworthy allegations made by the President and
his legal team. At times, these hosts also provided their own opinions about the
Fox had the right to interview Giuliani and Powell about their inherently
viewer would understand their statements as Fox’s own speech. Supra pp.15-19, 27-
28. For some challenged telecasts, Dominion does not even challenge speech by any
product rather than Dominion itself. For example, Powell and Giuliani claimed that
4
Judicial notice is proper for the challenged telecasts’ video and audio of each entire
program because they are “integral to a plaintiff’s claim and incorporated into the
complaint.” Vanderbilt Income & Growth Assocs., L.L.C. v. Arvida/JMB Managers,
Inc., 691 A.2d 609, 613 (Del. 1996). See Exs. I1-I18 (transcripts); J1-J18 (videos).
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software, counts votes overseas, is vulnerable to hacking, and was hacked by foreign
powers. Supra p.13. Under New York law, a claim for defamation of a “product”
claim. Drug Research Corp. v. Curtis Publ’g Co., 166 N.E.2d 319, 322 (N.Y. 1960);
see Kirby v. Wildenstein, 784 F. Supp. 1112, 1115 (S.D.N.Y. 1992). Plaintiffs’
a. Bartiromo.
that the President and his legal team were “readying new lawsuits,” and Rudy
Giuliani and Sidney Powell would “make the President’s case.” Ex.I2:12, J2.1:10.
Each was introduced as part of the President’s legal team. I2:3, J2.2:19. Bartiromo
began with Giuliani, asking “what is the evidence” showing fraud? I2:3, J2.2:34.
Bartiromo later asked Powell to explain the facts “as you see it.” I2:32,
J2.35:47. Powell alleged that “an algorithm” and “computers” were used to “flip”
votes “from Trump to Biden.” I2:34-35, J2.36:36. Bartiromo began to ask about that
claim, but broke for a commercial before Powell could respond. I2:34-35, J2.38:37.
Upon returning, Bartiromo picked up where she left off: “Sidney, we talked about
the Dominion software. I know that there were voting irregularities. Tell me about
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that.” I2:35, J2.39:00.. In context, Bartiromo simply summarized what Powell
alleged before the break. Powell then expanded on her prior allegations. I2:35,
J2.39:09.
Bartiromo responded, “I have never seen voting machines stop in the middle
of an election, stop down, and assess the situation.” I2:36, J2.40:00 This statement
software. Dominion’s complaint omits the portion of her statement clarifying that he
was connected to Smartmatic and Venezuela, inviting viewers later to assess those
Bartiromo announced at the outset that “President Trump’s legal team” would
interference,” and “new affidavits and lawsuits charging fraud.” Ex.I3:3, J3.00:17.
Throughout this program, Giuliani and Powell mentioned “Dominion” ten times,
“Smartmatic” ten times, and “Venezuela” four times. I3, J3. While Giuliani recited
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allegations, Bartiromo showed and explained an accurate graphic of six states that
used Dominion voting machines. I3:10, J3.9:10 see Compl.¶179(g). Bartiromo then
Giuliani whether the President was claiming that “states that used that software did
I3:11, J3.9:39.
Turning to Powell, Bartiromo noted that Powell “says she has enough
Bartiromo then pressed Powell, asking if she would “be able to prove” this in court.
I3:18, J3.16:13; see Compl.¶179(g). Powell responded, “I never say anything I can’t
J3.16:51. Powell claimed the evidence came “from various whistleblowers.” I3:20,
J3.18:38. When Bartiromo asked who received kickbacks, Powell reiterated “[w]e’re
still collecting the evidence on that.” I3:21, J3.18:40. Noting that Powell claimed to
“have an affidavit” showing fraud, Bartiromo again pressed Powell if she “can prove
5
Although the election-challenge complaints do not use the exact word “kickbacks,”
Bartiromo’s discussion is protected reporting of anticipated legal claims. Powell’s
statement previewed later-pleaded claims that state officials committed “corruption”
by overspending on Dominion’s allegedly insecure voting machines. See Ex.E5 ¶¶4,
12-13, 31, 97. Courts should not scrutinize reports of government proceedings with
“a lexicographer’s precision,” especially for legal terms of art. Holy Spirit, 399
N.E.2d at 1187; see Gurda v. Orange Cty. Publ’ns Div. of Ottaway Newspapers,
Inc., 436 N.E.2d 1326 (N.Y. 1982).
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this in court.” I3:23-24, J3.23:46. Powell responded, “Yes,” that she had a “sworn
b. Pirro.
Pirro explained that she was discussing legal “complaints, now in the form of
affidavits and lawsuits.” Ex.I4:4, J4. Pirro displayed the cover page of the Wood
complaint (Ex.E3), showing viewers (Ex.J4.7:13) that she was discussing pending
litigation:
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Pirro accurately stated “the basis of many complaints around the country, now
been tagged as one, allegedly, capable of flipping votes.” Ex.I4:4-5, J4.2:45. Pirro’s
next sentence explained that Powell would discuss these allegations: “Now, you’ll
hear from Sidney Powell in a few minutes, who will explain what she has unearthed
the Dominion and Smartmatic software,” Pirro asked, “[W]hat evidence do you have
to prove this?” I4:23, J4.25:53. Pirro asserted that Powell was the one “say[ing] you
have evidence,” and Pirro again asked how Powell would “prove that they [votes]
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were flipped?” I4:24, J4.26:41. This context confirms Pirro was asking questions
opinion, as are her well wishes to Powell. Especially for a pundit opinion
made by “the President’s lawyers,” explaining that “the President’s lawyers offered
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Separately, Pirro questioned, “Why was there an overnight popping of the
vote tabulation that cannot be explained for Biden?” Ex.I5:8, J5.8:44. This expressed
Pirro’s opinion about whether an explanation existed. It does not even mention
c. Dobbs. Lou Dobbs is another Fox primetime veteran pundit long known for
his fiery rhetoric since before joining Fox, which is crucial context for evaluating
his speech. Supra p.27-29. Dobbs has been commenting on election-security issues
“President Trump’s personal attorney.” Ex.I6:24, J6.26:12. Dobbs asked Giuliani for
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Giuliani alleged ties between Dominion, Smartmatic, and Venezuelans “very
close” to Venezuelan leaders Hugo Chávez and Nicolás Maduro. Id. Giuliani alleged
that Dominion voting machines “can be hacked” and “can change votes.” Ex.I6:24-
26, J6.26:40.
Dobbs reacted with opinion calling for further investigation “to find out
whether they did.” I6:26, J.28:75. As support for this opinion, Dobbs (accurately)
explained that “five of the top voting companies . . . comprise 90 percent of all the
election voting market in this country. It’s stunning.” I6:26, J.29:15. Omitting this
accurately noted these are “private firms,” opining that “very little is known about
their ownership, beyond what you’re saying about Dominion” so “[i]t’s very difficult
to get a handle on just who owns what and how they’re being operated.” I6:26,
assertions.
Dobbs next shared his opinion that the President’s claims might be difficult to
prove because “the state, as you [Giuliani] well know now, they have no ability to
audit meaningfully the votes that are cast because the servers are somewhere else.”
I6:26, J6.29:47. Given those challenges, Dobbs asked: “how do you proceed now?”
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I6:26-27, J6.30:06. Dominion’s complaint omits this important context, which
further confirms that a reasonable viewer would have understood Dobbs as repeating
Giuliani’s allegations to offer Dobbs’ own opinions and asking Giuliani about his
Reacting to Giuliani’s claim that “[t]his was a stolen election,” Dobbs later
opined that “this looks to me like it may be—and I say may be—I’m not suggesting
it is.” Ex.I6:29, J6.32:24. Dobbs added hyperbolic rhetoric, further asserting his
effort to overthrow the President of the United States.” I6:29, J6.32:41. Dobbs ended
the segment with more opinion noting the election’s many “firsts” and calling for
investigation urging Giuliani to keep “pursuing what is the truth.” I6:31, J6.34:28.
“Dominion Voting Systems say they categorically deny any and all of President’s
Trump’s claims that their voting machines caused any voter fraud in key swing states
Trump’s legal team,” and immediately asking her to respond to Dominion’s “straight
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out disavowal of any claim of fraud.” I7:13-14, J7.14:18. Powell made various
allegations about “all the evidence we have collected on Dominion” including ties
of some of the governors and Secretaries of State who actually bought into the
you’re going to have to be quick to go through and to produce that investigation and
the results of it.” I7:15, J7.16:13. Dobbs expressed opinion reacting to Powell’s
After Powell made further assertions about Dominion, Dobbs reiterated his
opinion reacting to Powell’s allegations: “this is the culmination of what has been
over a four-year effort to overthrow this president,” and “[t]his looks like the effort
to carry out an endgame in the effort against [President Trump].” I7:17, J7.19:28.
¶179(d). On November 14, Dobbs tweeted: “Read all about Dominion and
Smartmatic voting companies and you’ll soon understand how pervasive this
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Democrat electoral fraud is, and why there’s no way in the world the 2020
Presidential election was free or fair.” Compl.¶179(d). This tweet features “loose,
defamatory facts. Milkovich, 497 U.S. at 21. Dobbs used “colloquial and loose”
language, Von Gutfeld, 603 N.E.2d at 937, when saying “there is no way in the
world” the election “was free or fair.” Moreover, the tweet is “devoid of reference
to” any “specific” facts about Dominion, id., and it instead attributes “electoral
outrage,” not “an accusation of fact.” Horsley v. Rivera, 292 F.3d 695, 702 (11th
Cir. 2002). This is not “the language of someone inviting reasonable persons” to
“find specific factual allegations in his remarks,” and this same reasoning has been
rejected in other defamation suits involving allegations of “fraud.” Von Gutfeld, 603
N.E.2d at 937.
defamatory facts. Courts have recognized that Twitter is not a forum where
reasonable viewers would conclude they are seeing actual facts about the plaintiff.
Rapaport v. Barstool Sports, Inc., 2021 WL 1178240, at *19 (S.D.N.Y.); see also
Konig v. WordPress.com, 112 A.D.3d 936, 937 (N.Y. App. Div. 2013) (reasonable
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conduct”). Instead, the “common expectation” with Twitter is that such statements
“will represent the viewpoints of their authors and, as such, contain considerable
N.E.2d at 1130.
stated, “Dominion systems [are] used in more than two dozen states” and “Dominion
[is] also one of three companies accounting for almost 90% of the voting equipment
Trump’s legal team.” Ex.I8:3, J8.15:04. Noting that Powell’s “legal team” had a
growing “interest” in Dominion, Dobbs asked her for “the latest.” I8:3, J8.15:15.
Powell discussed what she called “stunning evidence” from a witness “affidavit.”
I8:14, J8.15:28.
allegation that “Smartmatic owns Dominion.” I8:16-17, 21, J8. The video and audio
provide crucial context imperceptible from the transcript, as Dobbs and Powell were
talking over each other. After Powell’s lengthy discussion of “Smartmatic,” Dobbs
interjected to ask Powell to explain her allegations of how Smartmatic and Dominion
were related. See I8:16-17, J8. (Dobbs: “And Smartmatic, the relation—”). At that
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same time, Powell continued speaking while Dobbs interjected. See id. (Powell:
“Smartmatic is—”). Following a two-second pause, both Dobbs and Powell started
speaking again at the same time: Dobbs said, “Sidney, I—.” I8:16-17, J8. Lost amid
the “cross talk” noted on the transcript, Ex.I8, Powell simultaneously said
interjected to get the interview moving, saying: “—yes. And Smartmatic, the—the
President’s transition team.” I8:17, J8. In context, Dobbs was not affirming Powell’s
allegation because the two were talking over each other (and Powell’s audio was
Dobbs later expressed his opinion that the election had been “deeply
troubling” and “the worst in this country’s history,” while the investigations were
“slow to move” and “infuriating.” I8:20, J8.22:07. Dobbs ended the interview with
more opinion calling for further investigation “to find out exactly what’s going on.”
I8:20-21, J8.22:58.
¶179(i). On November 18, Dobbs read from the affidavit filed in Georgia
federal court the day before. Supra p.9. Dominion’s complaint omits that most of the
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Dominion also complains that Dobbs said, “It’s outrageous.” Compl. ¶179(i).
F.3d at 702.
which Powell cited the publicly filed “affidavit,” and Dobbs again quoted from it.
Compl. ¶179(j). Dobbs then reported that “Smartmatic and Dominion deny those
charges.” Id.
obviously of the president’s legal team” and asking her to comment “as you and the
legal team see it.” Ex.I9:11, J9.11:54. Dobbs asked Powell whether Dominion was
linked to Smartmatic, and whether the companies’ servers record votes. I9:13-14,
J9.11:54. These questions do not assert defamatory facts, and they addressed
newsworthy allegations.
After describing the “legal grounds” for challenging “use of those [Dominion]
machines,” Powell promised “suits” seeking “to invalidate the results of the
election.” I9:13, J9. Dobbs pressed Powell for more evidence, asking “when do you
believe you will be prepared to come forward with hard evidence establishing the
I9:14, J9.16:19. Dobbs opined that “our election is run by companies, the ownership
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of which we don’t know.” I9:15, J9.17:39. This is opinion and hyperbole in context,
¶179(l). On November 24, Dobbs interviewed Powell about the litigation “in
Georgia.” Ex.I10:15-16, J10.17:48. Dobbs asked Powell, “Are you planning any
other suits beyond Georgia?,” and Powell answered, “Yes, we are.” I10:16,
J.10.17:48.
through electronic voting; that is, these machines, these electronic voting companies,
interpret this as Dobbs’ opinion that, until recently, Americans had not given much
pending “case in the court in Georgia.” Ex.I11:13, J11.15:36. Dobbs asked Powell
about the request for “an injunction” regarding an election “server.” I11:15,
J11.17:20. Powell responded that amid litigation, someone “removed the server.”
I11:15, J11.18:00. That prompted hyperbolic opinion from Dobbs: “You know,
people don’t go to jail for their attitude, but in the case of the Secretary of State and
the governor of Georgia right now, one would be tempted to prosecute, based on
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their conduct so far. What is going on with those two individuals?” I11:15-16,
J11.18:13. This is protected opinion discussing government officials, and it does not
mention Dominion.
rhetoric expressing outrage: “you know, I just can’t”; “I think most Americans right
now cannot believe”; “no idea what’s going on”; “the most ludicrous, irresponsible,
and rancid system imaginable”; “complete nation of fools”; “Are you kidding me?”
I11:17, J11.19:55.
Dobbs ended with opinion calling for the President to investigate further: “this
President has to take, I believe, drastic action, dramatic action, to make certain that
about how our voting systems have been manipulated in this election.” Ex.I12:12,
government proceedings. By this point, the President’s allegations had been in the
news and court proceedings for weeks, and Dobbs accurately summarized those
newsworthy allegations when he asked Waldron: “At the center of it all, Dominion
Voting Systems. Are they the culprit here? Not the only culprit, but are they the
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Dobbs also summarized Waldron’s allegations from “battleground States, in
which you’ve been testifying”: “Dominion Voting Systems, which you have
system. Give us your sense of who is driving all this.” I12:14, J12. (emphasis added).
protected speech. Waldron then made various allegations about “Dominion” related
to his testimony. I12:14, J12. Dobbs even pressed Waldron for “evidence of foreign
on November 3rd now a 2020 Cyber Pearl Harbor.” Ex.I13:3, J13. Dobbs accurately
summarized that “she charges four individuals as authors of what she calls a Pearl
Harbor-style cyber attack on the 2020 presidential election.” I13:8, J13. Dobbs asked
Powell, “You say these four individuals led the effort to rig this election. How did
they do it?” I13:9, J13. Dobbs displayed (Ex.J13) their names “according to Sidney
Powell”:
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Dobbs asked Powell, “what is the evidence” showing a “relationship among
these four individuals?” Ex.I13:10, J13. Dobbs pressed again, “What is the
commercial break: “We’re going to examine in some detail the—the reason for what
is apparently a broadly coordinated effort to—to actually bring down this President
by ending his second term before it could begin.” Ex.I13:13, J13.With this context,
unit for the Department of Homeland Security,” the “FBI director,” and the
opinion in context, as Dobbs used figurative and loose language—such as “it was
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nonsense”; “who has apparently lost both his nerve and his commitment to his oath
preceded him”; “doesn’t know what the hell it’s talking about”; and “is spending
more time playing politics.” Ex.I13:15, J13. Dobbs also made the following call for
further investigation: “We will gladly put forward your evidence that supports your
claim that this was a cyber Pearl Harbor. We have tremendous evidence already, of
fraud in the election. But I will be glad to put forward on this broadcast whatever
evidence you have, and we’ll be glad to do it immediately. . . . We’ll work overnight.
We will—we will take up whatever air we’re permitted beyond this broadcast, but
we have to get to the bottom of this.” Ex.I13:17, J13. In context, Dobbs offered to
report on additional evidence from lawyers litigating pending cases, asserted his
opinion about the evidence already presented, and called for further investigation.
officials: “I mean the Governor and the state—Secretary of State have to find, if not
the integrity, the—the primal fear of the voters in Georgia to stop what’s going on
and stop it now,” either out of “integrity,” or at least “the primal fear of the voters.”
Ex.I13:19, J13. This does not assert any facts, and the hyperbolic language (“primal
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This same day that Dobbs interviewed Powell on his telecast to discuss her
“cyber Pearl Harbor” allegations, Dobbs posted two connected related messages on
election came under massive cyber-attack orchestrated with the help of Dominion,
Harbor: The leftwing establishment have aligned their forces to overthrow the
at most hyperbolic opinions with figurative and loose language. Embedded in the
tweet at ¶179(p) is a document that, in full context, a reasonable viewer would not
ascribe to Dobbs. When the full context is considered, this document summarized
telecast, while using the phrase “cyber Pearl Harbor” that Dobbs attributed to Powell
on the telecast. In all events, the speech’s forum, Twitter, confirms that reasonable
viewers would not conclude that they were seeing facts about Dominion—
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document with Powell’s allegations discussed on that night’s telecast. See Brian,
Lindell on his program. Carlson did so because “Lindell ha[d] just been banned from
simply identifies Lindell and does not mention Dominion, voting, or the election.
targeting Lindell through online speech. I14:18, J14.17:22. Lindell stated that if
“[f]ake stories” online can target him, then “[t]hey can do it to anyone out there, but
we’re not—I’m not backing down. We can’t back down not of fear this time.
Nobody.” I14:18, J14.17:42. To that opinion about not backing down when facing
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contrary speech, Carlson said: “I totally agree.” I14:18, J14.17:51. Carlson offered
an opinion about the value of “not backing down,” and argued throughout this
segment that individuals should not self-censor their speech. See I14:20-21,
J14.17:51. (“[Y]ou don’t make people kind of calm down and get reasonable and
Lindell later asserted, “I’ve been all in trying to find the machine fraud, and
I—we found it. We have all the evidence.” I14:19, J14.18:38. Lindell continued,
“No. I have the evidence.” I14:19, J14.18:56. He “dare[d] Dominion to sue me.” Id.
Lindell then asserted his opinion that “they don’t want to talk about it.” I14:19,
J14.18:56. Carlson added his opinion: “No. They don’t.” I14:19, J14.18:56. This is
protected speculative opinion because neither Lindell nor Carlson could know the
mental state of Dominion—or Dominion’s own opinions about what it did and did
II. Dominion fails to allege actual malice as required under the First
Amendment and New York law.
Not only have Plaintiffs failed to allege actionable speech, but they also have
failed to plead facts that clearly and convincingly establish “actual malice,” an
The First Amendment and New York law each requires actual malice here.
Under New York’s anti-SLAPP law, Dominion must prove “actual malice” with
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“clear and convincing evidence” because Fox’s challenged “public” speech about
election fraud concerns an “issue of public interest.” N.Y. Civ. Rights Law §76-
a(1)(a). This is “substantive” New York law applicable here. D.I.38. Regardless, the
limited-purpose “public figure” for its “election-related” activities. Agar v. Judy, 151
A.3d 456, 477 (Del. Ch. 2017). Public controversy over electronic voting and
Dominion’s system specifically long predates the November 2020 election. Supra
p.6-8. By providing voting technology for the core government function of running
elections “while knowing of the preexisting public controversy” over its technology,
Dominion “assumed the risk” that it could become embroiled in further controversy
over election security or results. Lohrenz v. Donnelly, 350 F.3d 1272, 1280 (D.C.
Cir. 2003); see Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974).
Actual malice is a subjective standard requiring that the defendant “in fact”
had a “high degree of awareness of probable falsity.” St. Amant v. Thompson, 390
U.S. 727, 731 (1968). Even at the pleading stage, a plaintiff is required “to allege
facts sufficient to show actual malice with convincing clarity.” Jimenez v. United
Fed’n of Teachers, 239 A.D.2d 265, 266 (N.Y. App. Div. 1997). Dominion’s
Newsday, Inc., 416 N.E.2d 557, 566 (N.Y. 1980); see Weber v. Woods, 334 N.E.2d
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857, 863 (Ill. App. Ct. 1975) (rejecting liability for defamatory statement by guest
Rather, the relevant inquiry addresses the actual speaker’s state of mind—here, the
Fox hosts alleged to have spoken defamatory statements, and not other Fox
employees. E.g., Dongguk Univ. v. Yale Univ., 734 F.3d 113, 123 (2d Cir. 2013)
responsible for publication of a statement, and it is that individual the plaintiff must
prove acted with actual malice.”). Actual malice is quite difficult to establish in the
context of live-interview telecasts. Pacella v. Milford Radio Corp., 462 N.E.2d 355,
360 (Mass. App. Ct. 1984), aff’d, 476 N.E.2d 595 (Mass. 1985); Adams v. Frontier
Giuliani for evidence backing up their claims, questioning how they planned to
prove them in court. Supra p.13-14. While reacting to the President’s surrogates’
allegations, Fox’s hosts often called for further investigation. Id. These hosts’ calls
for further factual development demonstrate their genuine lack of knowledge about
the full scope of allegations pressed by lawyers in pending litigation, so this cannot
reflect actual malice: “[T]here is a critical difference between not knowing whether
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something is true and being highly aware that it is probably false. Only the latter
Dominion claims that Fox knew or recklessly ignored that the vote-fraud
allegations against Dominion were false because the network possessed two sources
of information: (1) contrary reporting by Fox and other media outlets; and
(2) denials that Dominion sent to Fox hosts and producers. Compl.¶¶66-69, 76-77,
79, 82, 85-86, 88, 94, 96, 99, 103, 113, 181, 199. Dominion also alleges Fox covered
these allegations to increase ratings. Compl.¶¶1, 61, 74, 203. None of these claims
material does not suffice to prove actual malice.” Kipper v. NYP Holdings Co., 912
637 N.E.2d 268, 271 (N.Y. 1994). Even contrary stories published by the defendant
itself do not establish actual malice. E.g., Sullivan, 376 U.S. at 287. Nor do
conflicting stories create some duty for further investigation: “[R]eckless conduct is
not measured by whether a reasonably prudent man would have published, or would
-55-
have investigated before publishing.” St. Amant, 390 U.S. at 731; Kipper, 912
N.E.2d at 30.
themselves, they hardly alert the conscientious reporter to the likelihood of error.”
Edwards, 556 F.2d at 121; see Coliniatis v. Dimas, 965 F. Supp. 511, 519 (S.D.N.Y.
1997).
and technologically impossible.” Compl.¶59, 194. But just weeks before the
November 2020 election, Georgia federal Judge Totenberg credited the testimony of
“achieved such an impeccable reputation for truth and accuracy that any suggestion
purported witnesses also supported allegations made in litigation. Supra p.9. These
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government proceedings remained pending throughout Fox’s challenged coverage.
Dominion cannot establish actual malice because that coverage concerns “matters
witnesses.” Wilsey v. Saratoga Harness Racing, Inc., 140 A.D.2d 857, 859 (N.Y.
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CONCLUSION
The Court should grant defendant’s Rule 12(b)(6) motion to dismiss for
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