A defamation case against Fox News has pitted a voting technology company founded in Toronto against one of the most powerful media organizations on Earth.
Dominion Voting Systems has accused Fox of seeking a “license to knowingly spread lies.” The company is suing Fox for US$1.6-billion, and has succeeded in prying loose a raft of internal communications that have cast the network and its hosts in an unseemly light, revealing their private disbelief of claims about a stolen election even as they gave air to those making exactly such allegations.
At stake is not just the future of a company whose ballot-counting technology undergirds elections across the continent. A win for Dominion could, legal experts say, begin to challenge some of the misinformation that has become the omnipresent flotsam of the social media age.
“You’re going to have to be very cognizant of what you say now, from a legal standpoint, unless you want to pay big damages. And I think that’s the way it should be,” said Houston lawyer Wes Ball, who helped to lead a lawsuit against talk radio personality Alex Jones. Last year, Mr. Jones was ordered to pay nearly US$1-billion for repeatedly spreading falsehoods about the Sandy Hook shooting that killed 20 elementary-school children and six adults.
Mr. Ball built a career suing the makers of auto parts and medical devices for defects in their products, using courts to hold manufacturers liable. Much of the same logic applies to speech, he said.
“At the end of the day, Fox News, MSNBC, whoever it is – they’re in it for the business of making money,” he said. “When you start taking it away from them, they start being more careful.”
Dominion declined an interview request, citing the legal proceedings under way. Fox has accused the company of cherry picking quotes from its employees and generating “a lot of noise and confusion.” But, it argues, “the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights.”
The case is set for trial on April 17. Fox lawyers have said the $1.6-billion lawsuit is designed to “chill First Amendment-protected speech.”
Against that argument stands Dominion, an unlikely combatant in one of the most hard-fought battles in American society today, the fight to define reality and shape power.
The company’s chief executive, John Poulos, is a Greek-Canadian entrepreneur who studied electrical engineering at the University of Toronto and then, two decades ago, watched Florida’s fight over hanging chads and decided he could do better.
Mr. Poulos has described his sister as his first investor, a desire to help blind people vote as another of his motivations, and the 1920 Dominion Elections Act, which added women to federal voting lists, as the namesake for the company he founded in 2002.
Mr. Poulos quickly expanded across North America and into markets around the world. It was a fight from the beginning.
Governments resisted introducing novel technology into something as critical as elections. They preferred to rely on machines a half-century-old. “It’s a struggle,” Mr. Poulos told the Toronto Star in 2009.
Bringing change to government can be especially vexing, said Canadian inventor and engineer Michael Serbinis. “Everything is harder.” Mr. Poulos, who he knows, “built a great business overcoming many obstacles over the years.”
What Dominion promised was a product with digital speed and analogue security. One of its machines counts ballots that have been filled out by hand, using optical scanners that boast a speed and accuracy humans cannot match. Another allows for computerized voting, but creates a verifiable paper record of each ballot. From its earliest days, Dominion was focused on “the accuracy and integrity of their product,” recalls Joel Girsky, the founder of Hauppauge, N.Y.-based Jaco Electronics Inc., which in 2008 signed a contract to manufacture 4,500 optical-scan voting machines for the company.
Seven years later, when officials in Colorado conducted a 2015 test of four vendors’ voting equipment for municipal elections, Dominion came out on top, the results adjudicated by bipartisan committees. It hasn’t hurt the company’s credibility among election officials that Ms. Poulos holds a Canadian passport that makes him unable to vote in the U.S.
So when lawyers for Mr. Trump began accusing Dominion of a role in stealing the 2020 election, people close to the company said it had little choice but to fight back. Dominion employees and local election officials have received death threats; some brought in security to protect their homes. The company, which partnered with a New York private equity fund in 2018, has been forced to move office locations in Denver, where its U.S. headquarters is located.
Fox has disputed Dominion’s financial vulnerability, but the board of supervisors in California’s Shasta County voted in January to end its contract with the company, saying in a statement: “You can’t put a price tag on voter trust.”
The lawsuit is “a matter of survival,” said a former employee, whose name The Globe and Mail is not publishing because they were not authorized to speak.
Others see larger meaning in the case.
Mr. Poulos “is not only defending his company. In my opinion, he’s defending democracy,” said Marie Bountrogianni, a former minister responsible for democratic renewal with the province of Ontario, who knows Mr. Poulos.
“We don’t want a repeat of what Fox is doing – and continues to do.”
Making that case is not simple, however. Speech in the U.S. can only be considered defamation if it constitutes “actual malice,” which has tended to mean proving that someone has knowingly lied. That legal threshold, set in 1964, has proven difficult to surmount, making it the subject of increasing criticism from conservatives. In a 2021 dissenting opinion, conservative Supreme Court Justice Neil Gorsuch said “actual malice” has become “an effective immunity from liability.”
Lyrissa Lidsky, a constitutional scholar at the University of Florida, calls that a misunderstanding. “It’s a very difficult standard to prove. But it’s not impossible,” she said.
Defamation, she noted, is a limited tool to fight misinformation, of little use against the broader tide of falsity that is “polluting the information environment but not necessarily harming anybody’s reputation.” Nor is defamation an easy charge to make against the social media giants whose platforms have become dissemination channels for content unmoored from fact.
And courts in the U.S. have also tended to err on the side of free speech.
Still, if the Fox “case either settles for significant amounts of money or Dominion wins, that process will just accelerate,” said Lee Levine, a lawyer who has spent 40 years representing media companies. He dismissed concern that a loss for Fox would constrain news reporting. “The mainstream news organizations that I represented didn’t operate this way. Ever,” he said. “So I don’t know that they have to change anything in the wake of this.”
Less clear is what one case can do to remediate the country’s polluted information landscape.
Election denialism has remained widespread in the U.S. – and a win for Fox would offer new justification for it. A loss for the network, meanwhile, is likely to be ignored by denialists, said Mark Earley, supervisor of elections in Leon County, Florida.
That’s not to say it would be meaningless.
“For the deniers, a Dominion win will be just more evidence of the fix being in,” he said. “But it could possibly change Fox.”