- “Dominion has mischaracterized the record, cherry-picked quotes stripped of key context, and spilled considerable ink on facts that are irrelevant under black-letter principles of defamation law,” Fox News said Feb. 16, in response to a Dominion motion.
- “Dominion mischaracterizes the facts by cherry-picking soundbites, omitting key context, and mischaracterizing the record,” the network argued in a Feb. 27 statement.
- “Among the thousands of pages of evidence disclosed today, included are the full context surrounding Dominion’s cherry-picked narratives about FOX top executives, talent and internal communication,” the network said in a March 7 statement.
- “Much like it did in its opening summary judgment motion, Dominion litters its opposition brief with cherry-picked statements from people who have nothing to do with the specific statements it challenges as defamatory,” the network said in a March 8 statement.
There’s more to the Fox News cherry harvest (our fruity boldface throughout), but people can handle only so many of these morsels. The network’s overreliance on a monocrop defamation defense, moreover, speaks to wider considerations as the April 17 trial date in Dominion Voting Systems v. Fox News approaches — namely, that this is a case of volume. Dominion’s complaint spans nearly 140 pages, with 300 more in exhibits; more than 700 exhibits back up Dominion’s arguments for summary judgment; oral arguments for summary judgment stretched over two days, yielding transcripts of some 450 pages; the court schedule sets aside six weeks for the trial.
What’s driving all this? The seemingly bottomless supply of journalistic misfeasance at Fox News — the contradictions between what network talent believed and what they reported; the shaming of people who dared to fact-check claims from Trumpworld that the 2020 election was stolen; the network’s reaction — or non-reaction — to more than 3,000 emails from Dominion correcting untruths on Fox News airwaves. Discovery in the case has produced exhibits consisting of emails, texts and other documents substantiating all of these things.
Fox News accuses Dominion of twisting or otherwise stripping context from statements by Fox Corp. executives Rupert Murdoch and Lachlan Murdoch and Fox News host Sean Hannity, as well as other claims. A Feb. 27 brief answering Dominion’s motion for summary judgment lays out the legal import of the plaintiff’s alleged mangling of the record: “Dominion tries to distract from its evidentiary deficiencies by cherrypicking anything it can find from any corner of the Fox News organization that shows that anyone at Fox News doubted or disbelieved” claims that the election was stolen. This is a critical point because if Dominion hopes to prevail at trial, among the things it needs to show are that the defendants — which include both Fox News and its parent company, Fox Corp. — knew that the damaging claims it broadcast were false or acted with “reckless disregard” of their truth or falsity. Those are the alternatives for proving “actual malice,” a requirement for all defamation plaintiffs who are public figures under long-standing U.S. Supreme Court precedent.
What’s remarkable about the evidence from which Dominion has allegedly “cherry-picked” is how far it appears to go toward meeting this standard. One example: Last week, Dominion released a bevy of slides that it posted during the March 21-22 oral arguments over the motions for summary judgment. One of them contained information from a previously redacted exhibit detailing what the Fox News “Brain Room” had determined about the various allegations against Dominion after the 2020 election.
The brain room is a vaunted institution at Fox News, a research hub occasionally cited by hosts on air as a place to get facts unfiltered by ideology. Its verdict on Dominion, as communicated in a Nov. 13, 2020, email: “Claims about Dominion switching or deleting votes are 100% false,” reads the report. “Dominion systems continue to reliably and accurately count ballots, and state and local election authorities, as well as fact checkers, have publicly confirmed the integrity of the process.”
In a news organization, any such finding from the research office would drive coverage decisions. Not so at Fox, which persisted in indulging Dominion-related conspiracy theories for weeks after the “brain room” determination. As The Post’s Jeremy Barr reported this week, 18 of the 20 defamatory statements Dominion alleges in its suit came after that brain room memo. That’s precisely the sort of evidence at issue in a defamation trial. Yet when confronted with the fact, Fox News fell back on its talking point: “These documents once again demonstrate Dominion’s continued reliance on cherry-picked quotes without context to generate headlines in order to distract from the facts of this case,” reads its statement.
A Dominion spokesperson said Tuesday: “The emails, texts, and deposition testimony speak for themselves. We welcome all scrutiny of our evidence because it all leads to the same place — Fox knowingly spread lies causing enormous damage to an American company.”
Fox News has spent its entire 26 years picking facts and developments and presenting them as balanced news coverage. It has picked Benghazi cherries, Obama cherries, Clinton cherries, social-justice cherries, crime cherries, welfare cherries, Soros cherries and many others: Any tidbit that casts its ideological enemies in an unfavorable light gets top billing; the other stuff, you’ll have to find on other stations.
So there’s value in watching Fox News retreat again and again to its fruity mantra. This is an institution squirming in its own orchard of self-contradiction — a comeuppance with no expiration date.
