A Feb. 16 filing by Dominion Voting Systems in its defamation lawsuit in Delaware against Fox News has kicked up a media firestorm: Outlet after outlet described how internal email and text messages quoted in the document, a filing for summary judgment, showed that network honchos knew that former president Donald Trump’s election-theft claims were lies — and allowed them to air anyhow.
Yet the filing is filled with frustrating dead ends, the result of the network’s aggressive effort to prevent disclosure of many of the internal communicationsthat came out of discovery in the case, Dominion Voting Systems v. Fox News. The black passages in the document raise the questions: What is Fox News hiding? And will those passages ever be unredacted?
As the Dominion filing makes clear, Fox News executives panicked in the weeks after the November 2020 presidential election. The network had called Arizona on election night for Democratic candidate Joe Biden, a move regarded as treason by the network’s MAGA crowd, which declared viewers would flee to the competition, especiallyconservative cable news outlet Newsmax.
So, Fox News tried playing both sides — a little conspiracy-mongering here, a little factual injection there. Anything to hang on to its ratings preeminence.
One way the network competed with Newsmax was to host election-denying attorney Sidney Powell and her extravagant claims. Fox News CEO Suzanne Scott, who appeared multiple times in the Dominion filing, apparently commented on the situation, though the public, for now, doesn’t have the goods:
Impenetrable black expanses in the filing thwart a complete understanding of what was happening as Fox News faced down a ratings collapse. We do know what happened when White House correspondent Jacqui Heinrich fact-checked a stolen election claim made by Trump: Host Tucker Carlson advocated for her firing. Similar tensions arose when anchor Neil Cavuto cut away from a news conference at which Kayleigh McEnany, the White House press secretary, was inveighing against the election. “Whoa, whoa, whoa,” Cavuto said on air. “She’s charging the other side as welcoming fraud and welcoming illegal voting. Unless she has more details to back that up, I can’t in good countenance continue showing you this.”
At an actual news organization, that sort of quick thinking results in laudatory emails from the bosses. At Fox News, it set off more panic. And in the Dominion filing? A redaction:
All told, there are about 35 redacted passages in the opening narrative of Dominion’s Feb. 16 filing, a collection of anecdotes that launched a frenzy of negative press for Fox News. Though the redactions are in Dominion’s filing, they are a result of confidentiality designations made by lawyers for Fox News, according to a Dominion filing. Both parties are working under an order allowing them to protect certain discovery materials — sensitive, proprietary, commercially sensitive information, for example — from unrestricted public release. All filings containing such designated material must be filed under seal and appropriately redacted before public release.
Pressure is mounting for the redacted information to be revealed.
The New York Times and NPR on Jan. 25 filed a motion to unseal the redacted portions of the summary judgment briefs and related materials, noting that Delaware recognizes “constitutional and common law presumptive rights of access to judicial records filed in civil suits.” Though the Times-NPR filing acknowledges the difficulty of assessing redactions without knowing the nature of the information under wraps, it stresses the benefits of disclosure. “This lawsuit is unquestionably a consequential defamation case that tests the scope of the First Amendment,” the filing reads. “It has been the subject of widespread public interest and media coverage and undeniably involves a matter of profound public interest: namely, how a broadcast network fact-checked and presented to the public the allegations that the 2020 Presidential election was stolen and that plaintiff [Dominion] was to blame.”
Neither party can get away with willy-nilly redactions just for the sake of avoiding public embarrassment. Civil litigants in Delaware, as elsewhere, are subject to a presumption that anything they say in court filings is public. There is an exception for materials designated as confidential, but only for “good cause” — which Delaware courts have said is limited to trade secrets, “third-party confidential material” and “nonpublic financial information. All other documents are ‘deemed available for public disclosure.’”
Randall Chase, a correspondent for the Associated Press, submitted a letter to the court on Feb. 9 urging it to unseal a range of motions, briefs, exhibits and appendixes. It is “incumbent on the court to end the unwarranted secrecy in this case,” Chase’s letter reads.
In a Feb. 17 filing, Dominion itself challenged the confidential treatment of material in three recent briefs by itself, Fox News and Fox Corp. “All the redactions across all three briefs are there at the Fox Defendants’ request,” the document notes. A Fox News source, on the other hand, told the Erik Wemple Blog that the redactions are consistent with the law — and that the grounds for them include “redactions in accordance with the reporters’ privilege.”
Fox News didn’t respond to a question about why a media organization would insist on secrecy in a public court case.
They wouldn’t, would they?