The Dominion lawsuit shows the limits of Fox’s influence over its audience

RESPECT THE audience; make money. That was how Rush Limbaugh explained his success on conservative talk radio in the early 1990s. Educated types derided his listeners—religious, working-class people—but he affirmed them and made things devilishly fun. The charge that he delivered “marching orders” to “mind-numbed robots” had it all wrong, said Limbaugh, who died in 2021. Rather he listened to his listeners, and voiced their convictions. It was wonderful for ratings. “This is a business!”, he once exclaimed.

Some 30 years on the same principle drives Fox News, the cable-news network that brought Limbaugh’s right-wing, populist sensibility to TV and is now fending off a defamation lawsuit over its coverage of the 2020 election. Dominion Voting Systems, a voting-technology firm, is suing for defamation, accusing the network of knowingly spreading a lie that Dominion’s machines somehow threw the election for Joe Biden.

On April 17th the judge in the case, which is being held in Delaware, postponed the start of the trial by 24 hours. Speculation is rife that Dominion is considering a settlement offer from Fox. If it does get under way on April 18th, a verdict is expected in five or six weeks. Not since the phone-hacking scandal at News of the World, a now-defunct British tabloid, has an outlet in Rupert Murdoch’s media empire landed in such a legal mess. Dominion’s lawyers plan to haul in Mr Murdoch and the network’s biggest stars for testimony.

Dominion v Fox is an extraordinary case. Rarely do defamation cases proceed in public view; litigants often settle rather than test their luck in court (as Dominion still might). But already the lawsuit has laid bare—through the release of damning emails, texts and depositions of Fox staff and management—how America’s most popular cable network’s coverage of the news is shaped by a desire to tell its audience what it wants to hear and also by what its competitors are up to. And the case sheds light on Fox’s fractious relationship with the politician beloved by many of its viewers, Donald Trump.

Fox’s trouble started on election night. To Mr Trump’s dismay it was the first outlet to call Arizona, a swing state, for Mr Biden (correctly). Later several Fox reporters challenged Mr Trump’s claims that there had been widespread voter fraud. The treatment infuriated the outgoing president, who urged his supporters to switch to Newsmax and One America News, two upstart, fringe networks. That day the share price of Fox News’s parent company, Fox Corporation, shed 6%. Many of his voters duly changed the channel. About two weeks after the election Newsmax’s primetime audience had tripled, to 412,000. Fox’s fell by 37% to 3.5m.

Fox got on “war footing”, in the words of one executive. Suzanne Scott, the network’s boss, vowed to “plant flags letting the viewers know we hear them and respect them”. A journalist who had corrected election-fraud lies was chastised. So was another whose reporting higher-ups deemed “smug”. “I can’t keep defending these reporters who don’t understand our viewers,” wrote Ms Scott. The editor in charge of the Arizona decision was fired at the suggestion of Mr Murdoch, chair of Fox Corporation, who called the dismissal “a big message with Trump people”.

Meanwhile Mr Trump’s conspiracist lawyers, Sidney Powell and Rudy Giuliani, sat for chummy, credulous interviews with Fox hosts. They said that Dominion was owned by a Venezuelan company founded to rig elections for Hugo Chávez, and that the firm paid officials to alter votes. Both claims were made up. Privately people at the network called Ms Powell and Mr Giuliani kooks, full of “crazy stuff”. But the audience ate it up. “Any day with Rudy and Sidney is guaranteed gold!”, wrote a producer to colleagues.

The court filings show how quickly the network moved to appease Trump-aligned viewers and fend off outlets like Newsmax, whose ratings then fell back. (Their threat has thoroughly subsided: big cable distributors no longer carry One America News, while Newsmax was briefly dropped by DirectTV, a satellite provider, in January.) The filings also show the extent of disdain that both Mr Murdoch and Tucker Carlson, the network’s star host, had for Mr Trump. “I hate him passionately,” Mr Carlson wrote to a colleague a few days before the Capitol riot. “What he’s good at is destroying things. He’s the undisputed world champion of that. He could easily destroy us if we play it wrong.” A couple of months earlier, just after the election, Mr Murdoch wrote that Mr Trump was “increasingly mad”.

Having followed the audience, as Limbaugh advised, Fox then tried to lead it. For at least three months the network did not grant Mr Trump an interview, and tried hard instead to boost Florida’s governor, Ron DeSantis. Aides to Mr DeSantis have fed story ideas and talking points to Fox, according to communications obtained by the Tampa Bay Times. Mr DeSantis appeared on the network nearly once a day for months after the election of 2020.

But when Mr Trump is in trouble—during hearings of the January 6th Committee, the FBI’s raid on Mar-a-Lago, the former president’s Florida home, or Mr Trump’s indictment by Manhattan prosecutors—Fox rallies to his defence. “They can’t move until their audience moves,” says Nicole Hemmer, a historian of conservative media at Vanderbilt University. Mr Murdoch appears to agree. “[Leading] our viewers…is not as easy as it might seem,” he wrote after the Capitol riot.

All of which is fascinating for students of Fox and its influence on the American right. But what of Dominion’s lawsuit? The firm is seeking $1.6bn, about half what analysts estimate Fox News earned in revenue last year. Yet winning a defamation suit is hard in America, because it requires proof that a defendant acted with “actual malice” by knowingly publishing falsehoods, or doing so “recklessly”. All Fox has to do to win is argue that it was negligent rather than malicious. Fox’s legal team says it was reporting newsworthy statements made by the outgoing president and his lawyers. It also argues that a finding for Dominion would threaten the First Amendment privileges journalists enjoy in America.

If it goes ahead, the trial in Delaware will be fascinating viewing. But not on Fox. The network is not covering the trial.