NEW YORK – A court filing in a lawsuit against Fox News lays bare a panic at the network that it had alienated its viewers and damaged its brand by not lining up with President Donald Trump's false claims that he had won the 2020 presidential election.
That worry — a real one, judging by Fox's ratings in the election's aftermath — played a key role in Fox not setting the record straight about unfounded fraud claims, the network's accuser contends.
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“It's remarkable how weak ratings make good journalists do bad things,” the filing quotes Fox Washington news executive Bill Sammon as saying.
The details were included in a trove of private communications unearthed by lawyers and contained in a redacted brief filed Thursday by Dominion Voting Systems. Dominion claims in a $1.6 billion lawsuit that Fox aired allegations that Dominion had doctored the vote against Trump, even as it knew that was untrue. Fox says it was doing its job as a news organization by airing the accusations made by Trump and his allies.
Fox's internal troubles began with a correct call: declaring on election night 2020 that Democrat Joe Biden had beaten Trump in Arizona. The declaration, coming ahead of other news organizations, infuriated the president and his fans.
The backlash was noted in internal emails. “Holy cow, our audience is mad at the network,” said one, quoted by Dominion. “They're FURIOUS,” said another.
Five days after the election, Fox News founder Rupert Murdoch communicated to Suzanne Scott, Fox News CEO, that the channel was “getting creamed by CNN. Guess our viewers don't want to watch it,” according to court papers.
Fox News tumbled from first to third in the news network ratings between the Nov. 3, 2020, election and Biden's inauguration on Jan. 20, 2021, according to the Nielsen company. Meanwhile, thousands of Fox viewers flocked to the more conservative Newsmax, where prime-time viewership shot from 58,000 the week before the election to 568,000 the week after.
The change shook the foundations of a network that had consistently led in the news ratings for the better part of two decades.
Fox roared back into the lead by tacking more sharply to the right after Biden took office. But in the immediate aftermath of the election, there was genuine worry at its New York headquarters.
Almost immediately, the network went on “war footing,” Dominion said, quoting a Fox executive.
“Do the executives understand how much credibility and trust we've lost with our audience?” Fox prime-time star Tucker Carlson wrote to his producer, according to Dominion's brief. “We're playing with fire, for real ... an alternative like newsmax could be devastating to us.”
Dominion contends that Fox executives made the decision to push false narratives to entice their audience back, and points to claims made by Trump allies like attorney Sidney Powell on programs hosted by Maria Bartiromo and Lou Dobbs.
On Nov. 9, Fox News Channel's Neil Cavuto cut away from a news conference held by Trump aide Kayleigh McEnaney when she began to air unsubstantiated allegations. A Fox executive complained in the aftermath that Cavuto was damaging the network's brand.
The court filings also detailed two instances where Fox News reporters were attacked internally for tweeting fact checks. In one, reporter Jacqui Heinrich tweeted that there was no evidence any voting system deleted, lost or changed votes.
“Please get her fired,” Carlson messaged fellow anchor Sean Hannity, saying Heinrich was hurting the company, according to Dominion's filing. Heinrich's tweet was later deleted, the court papers said.
She later retweeted the fact-check, removing the names of Hannity and Dobbs.
Carlson himself tried to “thread the needle,” Dominion said. It noted how he publicly stated that Powell had never provided evidence to back up her claims of fraud. “On the other hand, he did not say what he believed privately — that she was lying,” Dominion said.
Fox said many of its specific responses will come in a document that Superior Court Judge Eric Davis in Delaware ordered sealed until Feb. 27. Fox said Dominion had mischaracterized the record and cherry-picked quotes stripped of key context.
“There will be a lot of noise and confusion generated by Dominion and their opportunistic private equity owners, but the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan,” Fox said.
If either side can persuade Davis to grant summary judgment in its favor, the case will end without a jury trial. If not, the trial is scheduled to begin in mid-April.
As a result of Sullivan and cases that followed, such defamation cases against journalists are usually very hard to prove, and Fox is also arguing that Dominion is grossly overestimating any economic damage to the company.
Ultimately, though, the case is pulling back the curtain on what happened at the nation's largest media outlet that appeals to conservative viewers at a pivotal time at the network's, and the nation's history.
“Privately, Fox hosts and executives knew that Donald Trump lost the election and that he needed to concede,” Dominion argued in the papers released Thursday. “But Fox viewers heard a different story — repeatedly.”
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This story was first published on February 18, 2023. It was updated on February 23, 2023, to make clear that reporter Jacqui Heinrich sent a second fact-checking tweet after being ordered to delete her first one.