00:00:00:04 – 00:01:56:25
… pages of previously unreleased documents, and Dominion’s $1.6 billion lawsuit against Fox News are now public. This huge trove includes emails and text messages from top executives and talent that further reinforced that they did not believe the false claims about election fraud that they were still pushing on air. Even Rupert Murdoch himself admitted in an email to the CEO of Fox News that the hosts of his network went too far in pushing Trump’s lies. He describes a meeting with Republican lawmakers writing this, quote, Big morning with McConnell meeting with Graham and other anti-impeachers but still getting mud thrown at us. Is it unarguable that high profile Fox voices fed the story that the election was stolen and that January 6th was an important chance to have the results overturned? Maybe Sean and Laura went too far.
All well for Sean to tell you that he was in despair about Trump. But what did he tell his viewers? Close quote. Now, these documents also include a bunch of text messages between Fox host Tucker Carlson and a member of his staff in which he actually says and details his disdain for former President Trump. He writes, quote, We are very, very close to being able to ignore Trump most nights. I truly can’t wait. I hate him passionately. I blew up at Peter Navarro today in frustration. I actually like Peter, but I can’t handle much more of this. That’s the last four years. We’re all pretending. We’ve got a lot to show for it because admitting what a disaster it’s been is too tough to digest. But come on, there isn’t really an upside to Trump. Close quotes. Those are the words of Tucker Carlson. Hmm. Wow.
Joining us now, Ken Turkel. He has represented several high profile clients in defamation and lawsuits, including probably most famously, the case you won Ken, against Gawker for Hulk Hogan. That was in 2016. And that was really precedent setting. Right? Because you guys were able to overcome a high bar against a media organization.
What does this do to Fox? Does this put Fox in more peril?
00:01:59:01 – 00:03:50:17
When we say “this” ? In looking at what’s been released? There’s an awful lot of documentary evidence, text messages, emails, quite a bit to digest. Breaking it down. The thoughts that I have here first. You rarely see that much paper in one of these cases, internal messaging rooms, things like that. But there’s so much here, so much communication. And then you have this emerging testimony of Rupert Murdoch, which is dynamite.
It’s actually tremendous evidence for a jury trial. It’s it’s storytelling, I think, in their opposition to the summary judgment motion that Fox filed, Dominion started with an excerpt from that testimony because it really is, you know, at the end of the day, we tell stories and the stories have to make sense and they have to be compelling and persuasive.
It’s a great story. Lead it. But there’s really no legal impact to it from an actual malice perspective, because the law is always going to focus on the mindset or what I like to call the undisclosed mental process of the speaker. And that’s what usually makes these cases so hard, is you’re trying to prove what someone was thinking, what they knew, when there is rarely any direct evidence of that.
What is interesting about this case right now, keeping in mind, the judge already denied a motion to dismiss and I think the legal issues are going to stay the same. We’re dealing with summary judgment. Is there dispute, material, fact? And rarely do you see this much clear indication that a broadcaster, a writer, was disclosing their state of mind directly, disclosing it. I don’t believe this. Then you have a report. That’s to the contrary. Fascinating. All right.
00:03:51:02 – 00:04:09:15
With all of that said, then, does it say anything to you that there has not been a settlement at this point? Because usually at this point, especially considering they said so much paper and depositions and all that, usually that, you know, let’s get this behind us. We don’t want this much disclosed about our company.
00:04:09:15 – 00:05:02:25
It’s sort of a different world, these bigger cases. I can tell you my own experience, having had to try Hogan, which was really a privacy case with a bad First Amendment defense. Right, but implicated all these issues in Palin. And I mean, I didn’t settle those. They went to trial. The question really is, what is the end game here?
What does that mean you’re looking for? Because so often in these cases, it’s vindication. Reputational rehabilitation, clear retraction with unambiguous language that we lied, things like that. They also have a pretty robust damages case with a nice business damages element for lost profits and lost enterprise value. But the question really is, what’s their endgame? That’s always the issue. What is the client’s goal? I would not be surprised if this thing went to trial.
00:05:02:29 – 00:05:06:01
You wouldn’t be surprised if what?
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I said I wouldn’t be surprised if this went to trial. Given the way the litigations proceed it’s unclear. Considering who is the lead counsel for Dominion, you know, an excellent attorney. I know, Tom. I would not be surprised if they try this case. It’s really an issue of what is the goal? What are they looking for?
00:05:25:19 – 00:05:34:13
Quickly before you go, are they. I mean, the idea, though, that they’re actually going to get $1.6 billion seems unrealistic. Unrealistic when you talk to people about this case, what do you think?
00:05:36:07 – 00:06:05:24
I looked at their damages breakdown and it’s an interesting model. They have lost 600 million. They have a lost enterprise, lost business value. When you have business damages like that, which I had in part in Hogan, not the same kind of very different type of damages that gives you a baseline number. They’re not crazy numbers, you know, if you assume they’re going to have experts who can prove up those business damages. Right. Forensic accountants. So, not crazy. You never know until you get the courtroom.
00:06:06:03 – 00:06:09:18
Yeah, I don’t I don’t think this is about money, though. I think it’s about something else.
00:06:09:24 – 00:06:13:19
I tend to agree. I think there’s a little more going on here. Yeah.
00:06:14:07 – 00:06:17:01
Thank you, Ken. Good to see you again. I appreciate it.
00:06:17:07 – 00:06:19:23
Thank you. Thanks for having me. Have a good day.
00:06:19:24 – 00:06:20:05
All right, you too.