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THE OTHER SIDE: The Rule of Law

What started out as a good week for the Rule of Law, with the indictment of former President Trump and the victory of Janet Protasiewicz for the Wisconsin Supreme Court, ended with yet another right-wing judicial attack on women’s ability to make their own health decisions and on the ability of physicians to practice medicine free of narrow-minded religious bias.

Sometimes I think I’m looking for hope in all the wrong places. To say the least, it’s been a long and winding road, an exhausting history since the dawn of humankind of the often deadly struggle to establish and expand the rule of law. My optimism, earned most recently by seeing the early results in the Dominion v. Fox lawsuit, and the actions of grand juries in both Georgia and New York City was quickly challenged by the outrageous, openly racist action of the Republican super-majority in Tennessee. It was both pathetic and deeply discouraging to watch as the Tennessee House of Representatives expelled two young Black legislators for their apparent lack of decorum as they joined many of their constituents demanding action in the face of yet another mass slaughter of innocents, including three children, at a private Christian elementary school in Nashville.

I’m wondering whether I should call this column “The Rule of Law—or the lack thereof,” because the despicable actions of the Tennessee legislature was quickly matched by the shocking corruption exposed by ProPublica. In “Clarence Thomas and the Billionaire,” Joshua Kaplan, Justin Elliott, and Alex Mierjeski revealed how Supreme Court Justice Clarence Thomas and his ultra-conservative wife, Ginni, took 20 years’ worth of luxurious, never officially acknowledged vacations and perks from conservative mega-donor and multi-billionaire Harlan Crow. Thomas’ pathetic response was that their trips on a private jet and island-hopping on a private yacht with a man who gifted his wife’s radical Tea Party politics with hundreds of thousands of dollars, including a salary, was that these continuing gifts “should be considered personal hospitality that did not have to be disclosed.”

What started out as a good week for the Rule of Law, with the indictment of former President Trump and the victory of Janet Protasiewicz for the Wisconsin Supreme Court, ended with yet another right-wing judicial attack on women’s ability to make their own health decisions and on the ability of physicians to practice medicine free of narrow-minded religious bias. As Joyce Vance wrote, “On the Friday before Easter, just after the end of the work week in Texas, a federal judge in Amarillo decided that Mifepristone, one of two key drugs used for medicated abortion, should be banned. This despite 20 years of data showing it’s safe and effective. Mifepristone has a lower rate of complications than Tylenol.”

In the weeks to come, I hope to address these critical events and the many challenges we face in making the Rule of Law manifest in our social, economic, and political lives. No easy assignment: We are on what seems to be a never-ending roller coaster, ups followed by downs then up again, with scarcely a moment to relax. As for up, on the evening of Monday, April 10, harkening back to the 1960s and the brave young folks of the Student Non-Violent Coordinating Committee, Tennessee Representative Justin Jones and a multi-racial coalition of his constituents all singing “This Little Light Of Mine” retrieved his seat in the Statehouse.

Let’s start with a brief and condensed look back at the never-ending struggle to enshrine equal rights in laws that apply to all. Historians and political scientists point to several notable signposts. Here’s the British Museum’s description of the Magna Carta: “‘John, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine and Count of Anjou, to his archbishops, bishops, abbots, earls, barons, justices, foresters, sheriffs, stewards, servants and to all his officials and loyal subjects, greeting.’ So begins (in English translation) the text of Magna Carta, as agreed by King John and the barons of England on 15 June 1215 … It is written on sheepskin parchment, in a documentary script, by a single scribe. The Latin text is in continuous prose.”

Everything about the document reveals a world very different from ours: its use of Latin, an excommunicated King facing the prospect of a civil war with his medieval noblemen. Yet it is familiar in a crucial way: the reluctant recognition by the powerful of the need to address the immutable desire of people to live in liberty. Of course, these concessions are almost aways constrained by what is absolutely necessary. In this case, limited to those considered “Free Men”—or the powerful barons, certainly not the peasants and the poor.

The Magna Carta was nevertheless an important step in the journey toward the expansion of personal freedom:

“TO ALL FREE MEN OF OUR KINGDOM we have also granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs:

“I’n future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

“To no one will we sell, to no one deny or delay right or justice.” (Emphasis added.)

Let’s jump five centuries ahead to the American experience. The Declaration of Independence spells out the grievances of the colonists against the British monarchy and announces their vision for a better world:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happinesss.”

The Founders engaged in great debates about how best to create a system of checks and balances, the division of power between the executive, the legislative, and judicial branches. They well knew the tendencies of the powerful, the monarchs and their agents, who were fervently convinced they knew best; that they, unambiguously, were far better than the rest, ordained to rule.

George Washington’s copy of “Federalist: A Collection of Essays,” 1787.

As James Madison wrote in Federalist #51:

“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precaution.” (Emphasis added.)

In Federalist #78, Alexander Hamilton wrote:

“The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” (Emphasis added.)

Ironically, we live today with the unfortunate reality of the growing tyranny of the Supreme Court, an institution that has pretty much moved far from an honest attempt to ascertain the meaning of the Constitution to interpreting it in their own right-wing favor. Meanwhile, they remain beyond control of the people. But back to the story.

Theory turned into practice with the adoption of our Constitution. Here’s the announcement of their purpose: the need to “establish Justice” and “secure the Blessings of Liberty.” They quickly addressed two of the Crown’s more egregious violations of that liberty: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it … [And] No Bill of Attainder or ex post facto Law shall be passed.”

In the Constitution, the Founders enshrined their expanded vision of liberty and the elevation of the rule of law. And, sadly, they provided evidence of their bias with their support of slavery, indentured servitude, and their insistence that Native people were lesser Americans: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

Article II, Section 4 of the Constitution promotes the principle that our leaders can be held accountable: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

The Bill of Rights offers a series of guarantees that limit the arbitrary power of the majority and those seeking to control and silence potential critics:

First Amendment — “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Fourth Amendment — “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Fifth Amendment — “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Sixth Amendment — “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

Eighth Amendment — “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

As uscourts.gov explains:

“Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:

    • “Publicly promulgated
    • “Equally enforced
    • “Independently adjudicated
    • “And consistent with international human rights principles.”

After slavery split the nation and threatened to undo the Republic, the 13th Amendment was passed in 1865: “Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

Three years later, the 14th Amendment was ratified, expanding the notion of citizenship and equal protection under law, and widening protection against the infringement of individual liberty: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws …”

In 1870, the 15th Amendment was passed, ensuring that people could not be denied the right to vote based on their race: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude …”

The struggle to expand equal rights has marked the American experience from its earliest days. And while the battle to end slavery raged, women were still excluded from exercising the powers routinely available to men. The fact is that women organized against their entrenched second-class citizenship decade after decade.

Women March Down Fifth Avenue in New York City in October, 1917 carrying placards representing the signatures of a million Americans. Photo courtesy of The New York Times photo archive via Wikimedia Commons.

But it wasn’t until 1920 that women secured passage of the 19th Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.”

In 1970, the 26th Amendment was passed: “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”

Clearly, the claim of the Founders to “establish Justice” and “secure the Blessings of Liberty” has taken centuries to accomplish, and many believe there is still much more work to be done.

I think it’s fair to say a great many people have lived with despair these last years as our civic life has been poisoned by Donald Trump’s hatred for immigrants, for Americans of color, the poor, and his disdain for women and LGBTQ+ Americans. This kind of hate is/has been a part of the American experience since our early days. But coupled with the power of the office of the presidency, and his slavish admiration for despots like the faux royal Saudis, Orban of Hungary, and Russia’s Putin, and his continuing popularity with about a third of all Americans, and his attempts to stay in office despite losing the 2020 election makes it less and less difficult to imagine an accelerating descent into fascism.

Like tyrants before him, Donald Trump always makes it clear who he believes stands in the way of making American “Great Again.” Given the surrender of so many in the Republican Party, and the many MAGA supporters willing to act on Trump’s behalf, even in violent ways, it is sometimes easy to miss the truly inspiring actions of some around us. I’m referring to the brave prosecutors like Fani Willis, Alvin Bragg, and Jack Smith; the equally courageous justices; and, even more impressive to me, grand jurors like those in Georgia and New York, who, when asked to take time away from everyday life and consider sometimes complex evidence, deliberate responsibly with their fellow jurors.

I’m also especially thankful for Judge Juan Merchan who recently presided over the Alan Weisselberg/Trump organization case. Weisselberg admitted to taking part in a scheme to receive more than $1.7 million in off-the-books perks and compensation from former President Donald Trump’s organization. And now that Alvin Bragg issued an indictment, Merchan is presiding over the Trump/Stormy Daniels matter. Then, of course, there’s U.S. District Court Chief Justice Beryl Howell who time and again has insisted that Trump loyalists must testify in the most recent court cases trying to hold the former President accountable.

I now want to focus on Delaware Superior Court Judge Eric M. Davis. I have previously written in depth about the Dominion Voting Machine lawsuit against FOX News, but recent developments have only strengthened my appreciation for the ability of the victim to look for justice from our court system.

Just to remind you, when it became clear to former President Trump and his legal and political advisors that they had lost the election to Joe Biden, they embarked upon a multi-faceted campaign to find whatever ways they could to stay in power. This involved the use of fraudulent alternate electors hoping to replace those electors who legitimately represented the winner, the attempt to bully local and state officials to find additional votes or falsely claim that Biden votes were illegitimate, and the phony charge that Dominion Voting Machines had surreptitiously changed Trump votes to Biden. Then, finally, to spur on the most rapid of MAGA supporters to violently attack the Capitol and Vice-President Pence to prevent the actual certification of Biden’s victory.

FOX controlled the Twitter account of Lou Dobbs and other FOX commentators. This November 19, 2020 tweet featured Sidney Powell repeating her claim that Dominion’s machines changed votes.

Dominion accumulated a vast amount of evidence that FOX was aware these charges were lies but repeatedly gave air time to those who were peddling these false charges. Why? Because they quickly realized that both Trump and his followers would go to competitors like Newsmax or OAN for the myth they preferred to hear rather than the true story.

 

On March 31, 2023, Law & Crime published the following: “Dominion wins rare judgment against Fox News on every legal issue but actual malice before blockbuster trial:”

 

Judge Davis’ March 31, 2023 decision to grant Dominion’s Motion for Summary Judgment in large part.

Adam Klasfeld wrote: “The remarkable, 130-page ruling from Delaware Superior Court Judge Eric M. Davis found that there was no need for a jury to establish that the broadcasts at issue were false.” (Emphasis added.)

You can find Judge Davis’ complete decision here.

Judge Davis summarized the background of this case:

“And on November 7, 2020, when Fox ultimately declared that President Biden had won the Election, its viewership went down. Lachlan Murdoch testified that the drop was concerning. On November 8, Rupert Murdoch emailed Ms. Scott, saying that Fox was ‘[g]etting creamed by CNN!’ … On November 9, 2020, Ms. Scott emailed Rupert Murdoch, noting the importance of ‘keep[ing] the audience who loves and trusts us … we need to make sure they know we aren’t abandoning them and still champions for them.’ Rupert Murdoch responded, ‘Thanks. All very true. Lots of sane Fox viewers still believe in Trump.’ Ms. Scott said ‘we will highlight our stars and plant flags letting the viewers know we hear them and respect them.’ …

“On November 11, 2020, Mr. Shah shared polling data from YouGov to Ms. Briganti, which showed that there were ‘clear declines in favorability, especially with primetime viewers’ for the Fox brand, and followed up later that day, stating, ‘on our current course, if not already then by the weekend, opinions of Fox from our core viewers will be underwater’ and ‘I’ve shared my thoughts with Lachlan and Viet, that bold, clear and decisive action is needed for us to begin to regain the trust that we’re losing with our core audience.’ By November 12, 2020, FC’s stock fell 6 [percent], and financial analysts attributed the decline of FC’s stock to former President Trump’s support for Fox’s competitors Newsmax and One America News (‘OAN’). By November 15, FNN’s daytime and primetime audience had declined by 34 [percent] and 37 [percent], respectively. At the same time, Newsmax’s daytime audience increased nearly six-fold, from 57,000 to 329,000, and its primetime audience tripled from 129,000 to 412,000.” (Footnotes removed, emphasis added.)

In his summary, Judge Davis noted:

“FNN has a centralized research department called the ‘Brainroom’ that conducts internal fact-checking. On November 13, 2020, the Brainroom completed a fact-check regarding the Dominion allegations, which stated:

    • “There was ‘no evidence of widespread fraud.’
    • “‘Claims about Dominion switching or deleting votes are 100% false’ and claims that votes for Former President Trump were deleted are ‘mathematically impossible.’
    • “‘Dominion has no company ownership relationships with any member of the Pelosi family, the Feinstein family, or the Clinton Global Initiative.’
    • “‘The U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) has debunked viral claims about the existence of a secret CIA program for vote fraud called Hammer and Scorecard.’
    • “‘No credible reports or evidence of any software issues exist.’
    • “‘Claims about software updates being done the night before Election Day are 100% false.’
    • “‘There are no issues with the use of Sharpie pens related to hand-marked paper ballots.’
    • “‘All U.S. voting systems must provide assurance that they work accurately and reliably as intended under federal U.S. Election Assistance Commission and state certification and testing requirements.”

In his section titled “Fox’s Internal Dialogue About the Allegations,” Judge Davis writes about how FOX host Tucker Carlson responded to truthful reporting:

“The same day, after a FNN reporter fact-checked former President Trump’s tweet about Dominion, Mr. Carlson sent the tweet to Mr. Hannity and said ‘Please get her fired … It’s measurably hurting the company. The stock price is down.’” (Emphasis added.)

Then adding this testimony:

“On November 14, 2020, during FNN’s coverage of a rally supporting former President Trump, Lachlan Murdoch told Ms. Scott that ‘News guys have to be careful how they cover this rally. So far some of the side comments are slightly anti, and they shouldn’t be. The narrative should be this is a huge celebration of the president.’ Ms. Scott responded: ‘Yes thanks.’” (Emphasis added.)

Judge Davis summarized the positions of the parties:

“FNN argues that the Statements are not defamatory as a matter of law. FNN contends that no reasonable viewer would understand that FNN’s coverage and commentary on the Dominion allegations as presenting information that FNN determined to be true. Instead, FNN asserts that the reasonable viewer would understand that FNN is merely ‘fulfilling its journalistic duty to “present newsworthy allegations made by others.”‘

“Additionally, FNN argues that under New York common-law principles and the First Amendment, the reporting of a newsworthy allegation by the press is not defamatory, even if the allegations are later found to be false …

“FNN posits that FNN’s coverage of former President Trump’s allegations regarding Dominion and election fraud was newsworthy. As such, the FNN hosts ‘informed their audiences at every turn that the allegations were just allegations that would need to be proven in court … [a]nd to the extent some hosts commented on the allegations, that commentary is independently protected as opinion’ …

“FNN asserts that Dominion fails to show that FNN made or published the Statements with actual malice. FNN argues that it provided a forum for newsworthy claims and denials to be debated on, and the FNN hosts did not take the allegations at face value when their guests presented the allegations. Finally, FNN argues that it is entitled to summary judgment because Dominion failed to show that (i) that Dominion actually suffered any economic injury, and (ii) FNN’s actions were the cause of any economic harm. FNN notes that this is true even if the Court finds a triable issue of fact as to one or more of the contested statements, and the jury could reasonably find evidence of actual malice.”

Judge Davis then turns to Dominion’s claims: “Dominion contends that summary judgment should be granted in its favor because the statements were (1) false; (2) ‘of and concerning’ Dominion; (3) published by Fox; (4) defamatory per se and (5) made with actual malice. Dominion does not move for summary judgment on damages.”

Judge Davis then explains the Standard of Review and details the thorough effort Dominion made to demonstrate the falsity of every major allegation made against the company and its voting machines: the lie that they owned Smartmatic, that the algorithm used in their machines could switch votes, that their machines were developed in Venezuela to help Hugo Chavez win elections, and that they had provided financial kickbacks to ensure their machines were purchased.

Davis then notes:

“Fox dedicates little to its argument on falsity. It claims that ‘[t]he question is whether the press reported the “true” fact that the President made those allegations.’ However, falsity refers to the content of the statement, not the act of republishing it. Therefore, the question of falsity is whether the content of the allegations was true, not whether Fox truthfully republished the allegations.

“As discussed above, Dominion has offered proof demonstrating that the allegations were substantially false. Comparing the allegations at issue to the truth, the truth would have likely had a different outcome on the average viewer, as the statements at issue were dramatically different than the truth. In fact, although it cannot be attributed directly to Fox’s statements, it is noteworthy that some Americans still believe the election was rigged.”

US DOMINION, INC., DOMINION VOTING SYSTEMS, INC., and DOMINION VOTING SYSTEMS CORPORATION, Plaintiffs, v. FOX NEWS NETWORK, LLC, Decision Judge Eric Davis, March 31, 2023, Page 43. (Highlighting added.)

Judge Eric N. Davis pierced through the thick cloud of disinformation that has descended upon this nation from the moment Donald Trump came down the escalator in Trump Tower to begin his march to the highest office in the land. CRYSTAL-all-caps clear that FOX participated in the cruel mythology that Dominion’s voting machines had denied Trump his second term.

Judge Davis also decided,

“The Court will not grant summary judgment on the issue of actual malice … ‘Actual malice’ means that a defendant published false information about a plaintiff ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ To satisfy the reckless disregard standard, a plaintiff must establish that a defendant ‘entertained serious doubts as to the truth of [the] publication’ or had a ‘high degree of awareness of [its] probable falsity’ … The parties have generated a record that shows disputed material facts. Although both FNN and FC suggest the Statements should be examined individually, tracing each to determine whether someone responsible for the publication acted with actual malice as to the specific allegation of defamation. Dominion grouped the Statements into four types, proffered evidence explaining who it believes is responsible for the publication of each broadcast, and supported its claim that those individuals acted with actual malice with ample evidence.

“FNN and FC have offered evidence supporting their claims, contending that implicated individuals did not reach the level of involvement necessary to constitute responsibility for the publication and that the individuals did not act with actual malice. The Court does not weigh the evidence to determine who may have been responsible for publication and if such people acted with actual malice — these are genuine issues of material fact and therefore must be determined by a jury. Accordingly, the Court will deny summary judgment on the issue of actual malice, finding that genuine issues as to material fact exist and no party is entitled to judgment as a matter of law.” (Emphasis added.)

Then Judge Davis moves onto the issue of defamation:

“The Court finds that the Statements constitute defamation per se. Under New York law, a statement is defamatory per se if it ‘tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace.’ ‘[I]f [a statement] (1) charges the plaintiff with a serious crime; [or] (2) tends to injure the plaintiff in her or his trade, business or profession’ it is considered defamatory per se. Specifically, a statement charging a company with fraud, deception, or other misconduct in its business is defamatory per se. Where a statement is defamatory per se, a plaintiff need not prove damages to establish liability, as ‘injury is presumed.’ Whether a statement is defamatory per se is a question of law.

“Dominion alleges that each of the four categories of Statements is defamatory per se. The Statements claimed that Dominion committed election fraud; manipulated vote counts through its software and algorithms; is owned by a company founded in Venezuela to rig elections for dictator Hugo Chavez; and paid kickbacks to government officials who used its machines in the Election. According to Dominion, all these allegations strike at the ‘basic integrity’ of its business: providing voting systems to state and local governments …

“Because the evidence and analogous case law holds allegations such as the ones made in this civil proceeding are defamatory per se and Fox has not contended otherwise, the Court holds, as a matter of law, that Dominion is entitled to summary judgment on the element of defamation per se.” (Emphasis added.)

As to Dominion’s desire for economic damages, Judge Davis writes: “First, FOX claims that Dominion’s past financial history reveals that their claim for a billion dollars is widely exaggerated”; “Dominion cannot prove that the losses were caused by FNN’s coverage”; “the record shows Dominion’s customers were not influenced by any of the allegations or media reports regarding the Election, and Dominion’s claims are merely conjecture”; and, lastly, “that Dominion is not entitled to punitive damages as a matter of law, because under New York law, punitive damages can only be awarded upon showing common — law malice, requiring proof that the defendant made defamatory statements ‘out of hatred, ill will, or spite’ against the plaintiff.”

Davis notes:

“Dominion also contends that FNN misstated the applicable law on pecuniary damages. Dominion asserts that the full language of New York law on common-law damages requires that the defendant made defamatory statements ‘with deliberate intent to injure or made out of hatred, ill will, or spite or made with willful, wanton or reckless disregard of another’s rights.’ …

“The Statements involve allegations that Dominion created an ‘algorithm’ that was capable of ‘flipping’ votes, which was then installed on their voting machines and systems, and subsequently used to ‘steal’ the Election from a sitting United States President. Such accusations directly implicate and damage the ‘basic integrity’ or the ‘creditworthiness’ of Dominion, a voting technology company which relies on the reputation of the integrity and security of its voting machines and software. As such, the Statements are defamatory per se, which in turn creates a presumption of damages to Dominion, who may recover at least nominal damages.”

Davis writes:

“The calculation of damages is a question for the jury. As for other damage points, FNN questions the amount of damages and how those damages would be calculated. FNN argued these points strongly in its papers and at the hearing; however, FNN does not make a sustainable argument that Dominion is not entitled to damages as a matter of law or fact. In addition, the Court is aware that the parties have experts on damages and causation. Some, if not all, of these experts will testify at trial. The damage issue is fully joined and intensely factual. The Court will revisit the damages issue (including punitive damages) after the evidence has closed and, if necessary, tailor the jury instructions accordingly. The Court denies summary judgment on damages.” (Emphasis added.)

And, finally, Judge Davis concluded: “The Court will allow this civil action to go to a jury trial. The jury questions will relate to: (i) publication as to FC; (ii) actual malice as to FNN and/or FC; and (iii) whether Dominion incurred any damages.”

There was one significant dispute that Dominion lost. FOX argued strenuously that Rupert Murdoch, while Chairman of the Fox Corporation, did not hold a similar position at FOX News Network and could not be held liable for what happened at FOX News. On April 11 2023, according to a story in the Washington Post:

“An attorney for Dominion Voting Systems alleged Tuesday that Fox News withheld information that would have entitled Dominion to obtain more of network co-founder Rupert Murdoch’s communications in the election-technology company’s $1.6 billion defamation lawsuit …

“Justin Nelson, an attorney for Dominion, told the judge in the case that the company had been led to believe that Murdoch held the title of officer only for Fox’s parent company. But over the past few days, he said, Dominion learned that the mogul also holds an officer title for Fox News.

“‘This alone has meant that we are missing a whole bunch of Rupert Murdoch documents that we otherwise would have been entitled to,’ Nelson said. ‘It’s very troubling that this is where we are. It’s something that has really affected how we have litigated this case.’

Judge Eric M. Davis echoed Nelson’s frustration with Fox, saying the missing information about Murdoch’s title may have affected his decision-making regarding a recent ruling that narrowed the scope of the case. ‘I could have made an entirely wrong decision,’ Davis said.” (Emphasis added.)

Addressing an attorney for Fox News, the judge said the network has a “credibility problem.”

Having forced myself to watch FOX over the past few years, it was reassuring to see how Judge Davis came to what, in more ordinary, less embattled times, would seem almost obvious: FOX so very often used the traditional trappings of news reporting to pander to hyper-exaggerated, right-wing misinformation. Time and again FOX offered its highly effective programming to pro-Trump propagandists without ever providing analytical analysis or fact-checking. Never acknowledging all the efforts Dominion made to rebut these allegations. Is it any surprise that after offering lie after lie on its programs, that FOX continued to lie to both Dominion and the Court about Rupert Murdoch’s central role in this massive deception?

Unfortunately, Dominion, a company producing non-ideological vote counting machinery, got caught up in the need of a former president and his allies to deny the compelling reality that they had lost an election and would be forced to surrender political and economic power they had become accustomed to.

Judge Davis has worked conscientiously to weigh the arguments of both sides and re-affirmed some basic and critical truths about news gathering and reporting—and so far, in this case, re-affirming the Rule of Law.

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