Has Fox News outfoxed itself by airing Trump’s baseless election fraud claims?

While Donald Trump is no longer America’s president, an interview with the de facto leader of the Republican Party is still a golden ticket for America’s conservative news networks.

They haven’t lost their habit of fawning over him either. But something interesting happened during a recent pow-wow with Laura Ingraham, part of Fox News channel’s triple-headed primetime hydra of conservative commentators. There was just a little bit of pushback. 

Trump was commenting on various aspects of the first press conference given by Joe Biden, the man who defeated him, when Ingraham asked about the Democrats’ HR1 bill, designed to improve Americans’ access to voting. 

The former president started off as you might have expected: “You’ll never have another fair election in this country,” he claimed. He then pivoted to his chief grievance:  “Just like if you look at the last election: it was disgraceful. It was a third-world election.

“If you look at the numbers, the numbers were vastly in favour of us in the presidential election. It was disgraceful that they were able to get away with it, the Supreme Court didn’t have the courage.” This, as we know, is completely false. Biden won by more than 7 million votes, and secured a comfortable majority in the US electoral college, too. 

As Trump was speaking, Ingraham cut in: “Speaking as a lawyer, we’re not going to relitigate the past tonight.” 

She then sought to kick the conversation forward by warning any future candidate to have “an impeccable legal strategy in place” before swiftly steering Trump into the calmer waters of the supposedly “embarrassing meeting between Biden and the Chinese delegation”. 

Interestingly, the voting segment was absent from two YouTube uploads of Ingraham’s show, although it featured on Fox’s website.

The network may have attacked the pair of billion-dollar-plus lawsuits filed by voting-machine companies Smartmatic and Dominion as “baseless”, and promised to vigorously defend its election coverage “in the best traditions of American journalism”. But this could easily be interpreted as a sign that those lawsuits, which take aim at claims levelled against the companies on Fox, are having an impact. 

Ingraham’s interview is far from the only sign of that. 

A strange interview with Eddie Perez, “one of the leading authorities on open-source software for elections”, on the subject of voting machines, appeared on several Fox/Fox Business shows at the end of last year. It was widely interpreted as a sort of disclaimer (Perez was confronted with a series of allegations, which he debunked). Unusually, the interviewer was off-camera and the questions appeared in writing as well as being spoken. 

Fox also took Lou Dobbs, the highest-rated anchor on Fox Business, off the air. He is not expected back. Dobbs’ ratings success needs a bit of context. He was arguably Trump’s most fervent supporter, which takes some doing at Fox, but he was not particularly attractive to mainstream advertisers because of the nature of some of his statements. The network of course pooh-poohed suggestions of a link to the lawsuits, but the move still caught the eye.

NewsMax, a smaller network that has sought to outflank Fox from the right, has meanwhile run a segment covering “facts about Dominion/Smartmatic”, which appeared on its website as well. 

It also notably muted Mike Lindell, the MyPillow CEO and founder, who has been one of the most ardent backers of Trump’s baseless claims of electoral fraud, and who advertises heavily on the channel, during an interview on the subject of… you guessed it.

Smartmatic’s $2.7bn suit against Fox follows multiple claims about its software and ownership, despite the fact that the company provided election technology to just one county in Los Angeles. LA is, of course, in the solidly Democratic California, where the result wasn’t remotely in doubt. It is also suing three anchors: Dobbs, Maria Bartiromo, and Jeanine Pirro.

Dominion’s $1.6bn suit against Fox was filed a few days ago, and more could follow. It also names leading Fox personalities. Dominion’s machines were used much more widely, in 28 US states including some swing states. But multiple fact-checks performed on Trump’s claims that it played a role in delivering the election for Biden have demonstrated them to be utterly baseless. There is, despite what has been alleged, no link between the two companies. 

Defamation claims such as these face a high bar in the US – a much higher bar than in the UK, a country whose draconian libel laws have long been admired by Trump. Here, libel law uniquely puts a significant burden of proof on the defendant rather than the plaintiff (unlike other areas of civil law). It’s on the writer and/or publisher to prove they have not libelled a claimant. 

It’s the other way round in the US. If the plaintiff is adjudged to be a “public figure”, which may prove to be true of the companies, they also have to show that their opponent acted with “actual malice”. This is a legal term which means that the speaker knew, or should have known, that what they were saying wasn’t true. 

Hanging over all this is America’s cherished first amendment, guaranteeing free speech. It’s hard to see how suits filed against damaging and false claims that were disseminated with little apparent pushback could impinge upon that. But some legal scholars have publicly voiced concerns all the same. 

Some of the individuals named in the claims – Trump lawyers such as Rudy Giuliani or Sidney Powell, for example – may ultimately find themselves on a harder road than Fox and its peers, which will likely argue they were just “reporting the news” and airing opinions. 

But while Giuliani is undoubted wealthy, and Powell probably isn’t short of a few dollars herself, they aren’t the real prize. Individuals rarely are when it comes to defamation lawsuits. 

The real target is the networks. The numbers being talked about will likely be whittled down – they represent an opening salvo in what will inevitably be a long, and expensive, process. 

But a large verdict or settlement against either Newsmax or One America News – another Fox wannabe – could cause them serious problems. They are newer, lower rated, and much less well established than the kingpin of US cable news. 

In fact, if they get blown up by a big verdict it could, perversely, be of benefit to Fox. The “jewel” in the Murdoch family crown may be tarnished, and its ratings may have wobbled, but it has the resources to roll with any punch, and it would clearly benefit from the removal of its competition. 

Still, the blow to its prestige in the event of a loss would be considerable, only adding fuel to the fire of those arguing that it is less a news network than it is a Republican propaganda machine. 

And it might just force Fox to think twice about airing some of the wilder claims the Trump family has traded in. It appears that’s already happening.