Black’s Law Dictionary definition of “smoking gun” could be Dominion Voting System’s brief supporting its motion for summary judgment against Fox “News.”

Dominion’s argument is summed up in a Washington Post headline, “Fox News feared losing viewers by airing truth about election, documents show.  ‘Everything at stake here,’ billionaire founder Rupert Murdoch wrote to a top executive in November 2020, part of a cache of internal communications revealed in a $1.6 billion defamation suit.”

Litigators fantasize about finding incriminating documents buried in a mass of discovery, the so-called “smoking guns.”  Often, they are emails by mid-level employees proving that top executives lied so that they could keep making big profits.

Finding a smoking gun in discovery is hard – like finding a needle in a haystack, especially when the haystack is fighting hard to resist inspection.  When lawyers do find smoking guns, they feel that they have hit the jackpot.

Dominion’s brief actually doesn’t present a smoking gun.  A smoking gun is damning evidence found soon after the perpetrator left the scene of the crime.

Using another metaphor involving deadly weapons, it would be more accurate to say that Dominion found a video of high-level “news” executives and on-air “personalities” conspiring to launch a massive, coordinated missile attack – and then issuing the orders to begin.

Its brief quotes an amazing number of statements from texts, emails, and deposition testimony.  Soon after the 2020 election, top Fox personnel quickly realized that now-President Joe Biden won the election and that the conspiracy theories about Dominion’s voting machines were “absurd,” among other zesty language they used.  But they were horrified as their viewers switched to watching NewsMax (and even CNN!) in response to some accurate reporting on Fox.

The January 6 Committee Report extensively documents investigations by the Department of Justice as well as state and local officials into the conspiracy theories about Dominion’s voting machines.  The investigations all produced the same conclusion:  the voting machine results were extremely accurate and there was no basis for changing the result of the 2020 presidential election.  Former President Trump kept reciting the same “big lie” despite being repeatedly informed of the consistent results of investigations of the conspiracy theories.

Pressured by Mr. Trump and the prospect of losing their audience, Fox repeatedly disseminated conspiracy theories that they knew to be false so that they could win back viewers who were switching to NewsMax, according to Dominion’s brief.  This is what Fox called “respecting” their audience.

For example, when Fox News reporter Kristen Fischer fact-checked false statements by Mr. Trump’s lawyers, Rudolph Giuliani and Sidney Powell, her boss chastised her, saying that “higher-ups” were unhappy with her report and that she needed to do a better job of “respecting our audience.”

According to Dominion’s brief, Fox never had any credible evidence to support its claims, and it refused to correct its false statements despite receiving 3,682 (!) emails from Dominion requesting them to do so.  The brief states that, to this day, Fox has never acknowledged the truth nor apologized to Dominion or any of Fox’s viewers who actually want to hear the truth.

I’m no First Amendment expert, but this sure seems like a textbook case where a plaintiff can satisfy the “actual malice” requirement in a suit against a media corporation – and justify a huge punitive damages award.  (Obviously, Dominion’s brief is a partisan argument, and we don’t know how Fox will rebut it or what the judge will decide.)

Regardless of your views about the parties or the merits of their arguments, you can appreciate that Dominion’s brief is an impressive piece of legal advocacy.  It was possible only because of its diligent discovery, especially considering that getting Fox to provide all the evidence probably was like pulling teeth.

A Smoking Gun About Fox’s Role Re the January 6 Insurrection?

Dominion’s brief focused on proving Fox’s legal liability for the false claims it published about Dominion’s voting machines.  But it hints at Fox’s possible moral culpability for enabling the violent assault on the government on January 6.  The brief states:

When [Fox Corporation Chairman] Rupert Murdoch asked [Fox News CEO] Suzanne Scott whether it was “unarguable that high-profile Fox voices fed the story that the election was stolen and that January 6 [was] an important chance to have the results overturned,” Fox executives responded with 50 examples … .

…

On January 5, Rupert Murdoch told Suzanne Scott, “It’s been suggested our prime time three [Tucker Carlson, Sean Hannity, and Laura Ingraham] should independently or together say something like ‘the election is over and Joe Biden won,’” and that such a statement “would go a long way to stop the Trump myth that the election stolen.”  Scott forwarded the email to [Fox News Executive Vice President for Primetime Programming Meade] Cooper, stating “I told Rupert that privately they are all there – we need to be careful about using the shows and pissing off the viewers[,] but they know how to navigate.”  (Emphasis in original.)

The brief does not provide more information about what prompted these conversations – two months after the election, it was not exactly breaking news that Mr. Biden had won – or why Fox did not actually issue the statement that Mr. Murdoch mentioned.

The fact that they considered acknowledging the truth on the day before the January 6 attack suggests that they had reason to believe that bad things might happen.  Indeed, the January 6 Committee Report quoted a January 5 text from Sean Hannity to White House Chief of Staff Mark Meadows, saying: “I[‘]m very worried about the next 48 hours.”

Obviously, Fox is not legally responsible for the January 6 insurrection.  But the attack might not have happened at all or might have been much less damaging if Fox actually had issued a statement on January 5 affirming the fact that Mr. Biden legitimately won the election.

The January 6 Committee Report quotes frantic texts from Fox News personalities to the White House during the attack begging Mr. Trump to tell the rioters to leave the Capitol immediately.

Fox’s role in perpetuating what they knew to be the “big lie” raises questions about their motivations leading up to and during the attack on the government.  Texts from Fox personalities quoted in the January 6 Report indicate that during the assault, they anguished about political damage to Mr. Trump and their conservative cause.  Were they also concerned about injuries to law enforcement personnel and our democracy?  Did they feel guilty about Fox’s role in perpetuating the “big lie”?  Did they worry that Fox would be blamed for the attack?  Did they worry that it would hurt Fox’s ratings and revenue because their “pissed off” viewers would get their conspiracy theories elsewhere?

It would be good if more information is made public about Fox’s decision on January 5 not to report the truth.  Perhaps there is a smoking gun in Dominion’s discovery about Fox’s moral cowardice that prevented them from finally telling the truth when it might have prevented or hobbled the January 6 insurrection.

Stay tuned.