Dominion's Full Brief—February 27, 2023 Redacted Public Version

But even questions asked in the same segment can be just token efforts, as

FNN SVP David Clark explained:

If someone states -- someone lies or they inisiepreseiit the facts and the person who is interviewing that person just sort of says -- you know, they don’t push back -- RH Slting bnck hnrJ would be to say,

In this case, n token push back

So I think there’s degrees of push back and what I mennt by tohen, is that it would not really be challenging the assertions made by the guests.

Ex.106, Clark 156:13-157:3. Clark agreed “a token push back” would “be insutficient.” /d. 157:4-8. FNN EVP Meade Cooper likewise conceded that a token pushback is not really a fair reporting on either side.” Ex.108, Cooper 191:1-4.

Cooper also confirmed newsworthiness is not a license to lie, agreeing "you can cover the allegations and say they are conspiracy theories and not true” and there are ways to cover the allegations without giving a platform to the people spewing lies.” Ex.108, Cooper 284:8-14, 284:22-25. FC executive Rah Shah similarly acknowledged. “it’s possible to cover those allegations while pointing out in the same breath that they are being made without any evidence to support them.” Ex.605, Shah 260:14-20. And while Fox’s hosts on a few occasions acknowledged Dominion’s denials, reporting a bare denial by a falsely accused party is nowhere near as powerful as reporting that denial alongside the intormation the accused party provides to debunk the false charges. as FC CLPO Viet Dinh conceded. Ex.601. Dinh 65: I 4-20.

The Court should hold the neutral reportage defense unavailable under New York and federal law, but even if the Court were to consider the defense theoretically available, no ieasonable jury could find Fox carried its burden to invoke it for any of the statements at issue.

Fox’s fair report defense likewise fails, for reasons explained in detail above.

Silpl a pp.71-78. Fair report is a narrow doctrine (statutory in New York) that is not available in circumstances, like here, where the media defendant did not provide a substantially accurate report of the proceedings, and in fact in nearly every accused segment failed to identify any particular proceeding at all. /J. Dominion addresses below the six segments where Fox raised fair report in  its brief; Fox’s conclusory (and waived) invocations ot the defense for other segments solely in its appendix are addressed above. /‹f. pp.77-78.

Fox also argues that its hosts’ statements are “protected opinion.” FNN MSJ

p.57. This argument misses the point. Fox hosts endorsed and applauded the false Dominion allegations; howevei one might characterize those endoiseinents, they negate any “neutral reportage” defense tor Fox. Yet even if some Fox host statements were opinions, those opinions are actionable because they were based on

false facts, and falsely implied that they were based upon the existence of other facts unknown to the viewer. Milkovich, 497 U.S. at 18."

Fox’s treatment of its hosts’ endorsements is symptomatic of Fox’s broader practice of analyzing particular words and sentences in isolation, then pivoting to cite “context” well outside the accused segment, and even outside the accused show. This self-serving practice of both zooming in far too tightly and zooming out far too broadly has no support in the doctrine or case law. Other broadcasts are legally irrelevant to whether a statement is defamatory. While the most important context is the segment itself, New York courts have taken “the entire broadcast as the context relevant to a court's defamation inquiry.” Weary v. Goldstein, No. 91 CI V. 6222 (KMW), 1996 WL 447776, at *2 (S.D.N.Y. Aug. 8, 1996). Though other broadcasts might be relevant to the actual malice inquiry because they shed light on box ’.‹ state

' 5 As with fair report. Fox sometimes raises an “opinion” argument in its appendix without mentioning the argument in its brief. Arguments that a party does not raise in its brief are waived, Emerald Partners, 2003 WL 21003437, at *43, and particularly given the space constraints (Fox’s appendix was not included in Fox’s 46,000-word count for its two opening briefs), Dominion will not address those conclusory, waived arguments iii its brief. But the same response applies to each of them: opinions based on the false Dominion allegations, or implying undisclosed (and talse) facts, are actionable under Milkovich. And opinions that also constitute endorsements eliminate any possible neutral reportage defense.

Fox also raises a handful of “actual malice” arguments in this section of its brief.

Dominion addresses actual malice later in this brief. la/in §III.

of mind, they do not form part of the Court’s analysis for how a vic•wer would interpret the accused statements.

November 8, 2020 — Maria Bartiromo, Sundny Morning Futures $179(a).

This segment espouses both an overall false narrative that Dominion aided or caused “a massive and coordinated effort to steal this election from we the people of the United States of America, to delegitimate and destroy votes for Donald Trump, to manufacture votes for Joe Biden,” and specific false assertions that Dominion

rigged the election and used algorithms and software to do so. 1179(a); Dorn. MSJ App.D pp. 2-3; Ex.A2 p.15." The accused statements are unequivocal assertions of fact: “[t]hey also used an algorithm...,” “that’s where the fraud took place, where

they were flipping votes in the computer system, or adding votes that did not exist,” and so forth. Ex.A2 pp.15-16. They have “a precise meaning which is readily understood,” “are capable of being proven true or false,” and in their full context ‘signal readers or listeners that what is being read or heard is likely to be”’ fact. Gr‹›ss, 623 N.E.2d at 1167.

None of Fox’s arguments about this segment absolve it of liability.

'" Appendix D of Dominion’s motion for summary judgment identifies the accused statements, broadcast by broadcast. Appendix B identifies each broadcast’s transcript and video, by exhibit number (versions produced by Fox and Dominion). Fox’s motion identifies similar materials.

Neutral reportage. To try to prove it was merely neutrally reporting allegations, Fox first points to instances when Bartiromo asked questions as evidence of her neutrality. But three of the four questions Fox identifies are iii the Giuliani segment, which is not accused, and the questions have nothing to do with allegations against Dominion anyway. See FNN MSJ p.58-59; FNN App. p.1. The fourth question, asking why “we” are not seeing a massive government investigation, likewise had nothing to do with the Dominion vote-flipping allegations. Bartiromo prefaced it by reciting Powell’s allegations about ballots having “only Joe Biden on the ticket,” and then after Powell answered the question, Bartiromo tran.vitionc•d to the subject of Dominion: “Sidne y, I want to ask you about these algorithms and the Dominion software.” Ex.A2 p.16.

There is also nothing else about the context of the show that indicates neutrality. As the video shows, Powell’s tone is unequivocal, and Bartiromo’s tone is not skeptical. Though merely labeling something an “allegation” does not immunize the broadcaster (that’s Fox’s one-factor “newsworthy allegations” test). Bartiromo does not even label Powell S s statements as “allegations.” She never says the claims are unsubstantiated. In stark contrast to the cases Fox cites, neither Powell nor Bartiromo say that Dominion “may” have committed fraud. Powell says Dominion did. In fact, Fox’s own Senior Vice President of Weekend News & Programming David Clark, who supervised this show, agreed that Bartiromo did not

offer “any pushback,” not even “token push back,” in this segment. Ex.106, Clark

238:5-14.

If Bartiromo was truly being an accurate, neutral repoiter, she would have disclosed to her viewers the tact that the only ’evidence” Powell had provided for her explosive Dominion allegations was the email from the woman who “listens to the mind” and believed .Justice Scalia was murdered in a human hunting expedition. Dorn. MS.I pp.24-25, 118-119. Bartiromo admits that she ‘nevei confronted [Powell] either before her show or on the show as to whether or not” the email was her evidence. Ex.98, Bartiromo 142:12-19. Instead. Baniromo hid that from her viewers.

   Bartiromo never

told viewers that her statements abotit Powell making “the President’s case” were the opposite of what she had heard to be true from Powell herself. Bartiromo likewise admitted she “never confronted Ms. Powell with any evidence that u’as available to [her] contradicting [Powell’s] claims.” Ex.98, Bartiromo 179:16-21.

Fox points to Bartiromo’s statement that “there were voting irregularities” and that she has “never seen voting machines stop in the middle of an election, stop down, and assess the situation” and says those statements are substantially true. As support, Fox points to Antrim County, Michigan and Georgia and mischaractei izes

Dominion CEO John Poulos’ testimony. FNN MSJ pp.60-61. But by November 7, 2020, the day before the broadcast, the State of Michigan had already reported that human error, not Dominion software, caused the issue with unofficial vote reporting tallies in Antrim County, and had corrected the error. Svv Dorn. MSJ p.66. And contrary to Fox’s claim, there were no “irregularities” related to Dominion voting machines’ tabulation of votes in Georgia. .'see Dorn. MSJ pp.53, 67. The first article Fox points to is about a pipe bursting in Atlanta and does not mention Dominion at all. FNN MSJ p.61 (Ex.D2l). The second article, from November 4, 2020 (updated November 13, 2020), is about pollbooks (manufactured by a different company) in one county, and an issue with a batch scanner, not Dominion software, that had no impact on tabulation. iii one other county. See Ex.D18.

More to the point, the idea that Dominion voting machines were used to “stop down, and assess the situation” is patently absurd and was demonstrably false at the time asserted—Dominion cannot monitor or see votes in real time. .See Dorn. MSJ

p.65. Ignoring these facts. Bartiromo nonetheless accepted as the premise of her statement that these falsehoods were true.

Fair report ‹4 Opinion. Fox does not raise fair report or “opinion” for this

segment in its brief.

November 12, 2020 — Lou Dobbs, Low Dobbs Tonight

$179(b).

This segment espouses both an overall talse narrative that Dominion aided or caused electoral traud and specific talse assertions that Dominion was owned by a company formed in Venezuela to rig elections. Giuliani is unequivocal: “Dominion is a company that’s owned by another company called Smartmatic, ... formed  really by three Venezuelans who were very close to — very close to the dictator Chavez o1 Venezuela and it was torined in order to tix elections. That’s the company that owns Dominion.... all of its software is Smartmatic software, so the votes actually go to Barcelona, Spain.” 1179(b); Dorn. MSJ App.D pp.3-4; Ex.A5 p.8. These are readily

understandable, provably false assertions of fact. Fox’s defenses are ineritless.

Neutrnl reportage. In support of its neutral reportage argument, Fox asserts that Dobbs expressed “doubts” about Giuliani’s ability to “prove the President’s claims,” pointing to language in which Dobbs says it is difficult to “get a handle on just who owns what.” FNN MSJ p.63. But Fox omits the passage where Dobbs cretlits as true Giuliani’s preceding false statements about Dominion being owned by a Venezuelan company formed to rig elections: “little is known about their ownership beyond what you’re saying about Dominion.” Ex.A5 p.8.

Dobbs also directly supports Giuliani’s false narrative by saying “by the way,

the states,            well knoir now, they have no ability to audit meaningfully the votes  that are cast  because  the servers are somewhere  else and are considered

proprietary.” /J. That was false on many levels, Dorn. MSJ pp.51-55, and Dobbs admitted he never had any evidence to support the claims, Ex.111, Dobbs 64:11 - 65:15, 38:11-39:16. Fox tries to explain this statement away as Dobbs “repeating Giuliani’s allegations,” FNN MSJ p.65, but that is a nonsensical reading of Dobbs’ statement (including “as you well know now”).

Fox also raises the smokescreen of “vulnerability” and “hacking” in its discussion of this segment, but (again) that is not what Dominion sued over. Even Giuliani gets the ditt’erence, saying “[t]heir machines can be hacked. But it’c far mouse tltan that, Lou,” before launching into his false Venezuelan/Smartmatic conspiracy theory. Ex.A5 p.8.

The sole question in the segment that Fox points to as evidence of neutrality, “How do you proceed now?”, does not contest the veracity of Giuliani’s claims or suggest to viewers they are false. /J. p.9. To the extent Fox points to other segments (interviews with Andy Biggs or Jenna Ellis) and other topics that are not about Dominion (like Pennsylvania’s ballot deadline), such matters are irrelevant because Dominion has not accused them. Non-accused statements in non-accused segments of a broadcast do not convert actionable false statements of fact into non-actionable opinion.

Dobbs also hid evidence debunking the false claims from his audience. He admitted at his deposition that he was ‘aware of what they [referring to Dominion]

were saying about the allegations.” Ex.111, Dobbs 115:11-16. He and his producers had received an email earlier that day from Dominion not only denying any claims ot vote switching. but linking to its Setting the Record Stiaight” page, which contained links to credible official sources, including the U.S. Election Assistance Commission. identifying audits as one election safeguard that did exist.' 7 .See Ex.661 ; Ex.663 at FNN007 00019000; .›ee n/s‹› Ex.111, Dobbs 109:4-110: 14,

112: l 1-l 14:4; Ex.351 pp.3. 6. Dobbs didn’t mention any of this on air. Nor did lie tell his audience (as he admitted at his deposition years later) that he “had not seen any verifiable, tangible support that Dominion was owned by a company that was formed to fix elections.” Ex.111, Dobbs 65:7-15. The Dobbs team had reliable information from public sources as of November 12 that no fraud occurred, and they had no evidence to the contrary. Doin. MSJ at 125-126. They likewise could easily have fact-checked Dominion’s ownership, btit did not. /‹f. at 126; Ex.60 l, Dinh 26:11 -27:19.

Fnir report. Fox’s tair report argument points to cases filed weeks later. As the Court already rightly field. statements made before a lawsuit had been tiled” do

Fox’s tocus on ‘auditing” Dominion’s “servers” is nonsensical, as Dominion does not send votes to servers overseas. Dorn. MS.I p.68. Fox says “computer scientists and members of the media” had “similar concerns” as Dobbs about “Dominion’s servers and the challenge of auditing them.” FNN MS.I p.66. But the two articles Fox cites do not say that Dominion servers stored votes cast (abroad or anywhere) nor discuss the ability to audit” servers (whatever Fox means by that). The second article (Ex.D26) does not even mention Dominion.

not qualify for fair report immunity. MTD Order p.46. Fox also falsely says the cases it cites were filed by “President Trump’s legal team,” when they were all filed by Pow’ell after she had been disavowed by Trump and the campaign. Supra pp.45-

To the extent Fox is claiming to have been reporting on future Trumy c’ampaign

litigation, the “report” was wholly inaccurate. since the Trump campaign never filed any cases making the false Dominion allegations Fox broadcast in this segment. For that additional reason, the fair report defense is unavailable.

Opinion. Dobbs not only repeated but endorsed Giuliani’s statements, with

commentary like “It’s stunning,” “it is extraordinary that this election has got more firsts than any I can think of,” and “Rudy, we’re glad you’re on the case and pursuing what is the truth.” Ex.A5 pp.7, 10. Fox would immunize those soits of assertions as opinion, but that misses the point that such endorsements vitiate any neutral reportage det‘eiise, and ignores the Hilkovic’h rule that opinions based on false or undisclosed facts are actionable.

Fox’s highlights an instance where Dobbs says “I’in not sus 8esting it,” but that does not immunize Dobbs’ subsequent comments. FNN MSJ p.66. While Dobbs does say “this looks to me” and “I’m not suggesting it,” he then goes on to

actually  suggest  something.   In  particular,  he asserts  that  what  Giuliani  has said

about  Dominion  is part of “a four and a half year-long effort  to overthrow  the

President of the United States.” Ex.A5 p.9. Dobbs does not equivocate: he says, “It looks like it is exactly that.”

Fox’s argument that “viewers recognize that Lou Dobh› Tonight is an opinion show” is also unpersuasive. Fox executives understand that “even on opinion shows, factual accuracy matters.” Ex.108, Cooper 175:7-10. Dobbs himself confirmed that his show was a place for viewers to get “accurate information to inform themselves,” and that “viewers were entitled to believe the things [he] said.” Ex.111, Dobbs 19:18-20:17; .see iJ. 18:6-9. Fox broadcast talse claims of facts on Dobbs’ show. That is actionable conduct.

November 13, 2020 — Lou Dobbs, Lou Dobbs tonight

179(c).

This segment espouses both an overall talse narrative that Dominion aided or caused electoral fraud and specific false assertions that Dominion used software and algorithms to manipulate votes, was formed by a Venezuelan vote-rigging company, and paid kickbacks to government officials that used Dominion systems. The assertions are unequivocal, readily understandable, provably talse assertions of fact, touting “all the evidence we have collected on Dominion, starting  with  the  fact it was created to produce altered voting results in Venezuela for Hugo Chavez ,” as well as evidence on the financial interests of some of the governors and Secretaries of State who actually bought into the Dominion Systems, surprisingly enough — Hunter Biden type graft to line their own pockets by getting a voting machine in that

would either make sure their election was successful or they got money for their family from it,” and admonishing people to “come forward now and get on the right side  of this issue and  report  the fraud they  existed in Dominion Voting Systems, because that’s what it was createJ to Jo. It wac its sole original purpose.” 1 179(c); Dorn. MSJ App.D p.5; Ex.A7 p.6.

Neutral reportage. Dobbs endorsed both Powell herself(twice calling her “a

great American”) and her lies. saying. for example, “Well, good.” and “We’re glad that you are on the charge.” Ex.A7 pp.5-6. He called her lies “straightforward,” referred to the false conspiracy theory as “the culmination of what has been an over a four-year effort to overthrow this president,” told viewers “this is an extraordinary and such a dangerous moment in our history,” and concluded by characterizing the stolen election narrative featuring Dominion as “a foul mess” that was “far more sinister than any of us could have imagined.” /J. No reasonable person could consider this dispassionate reporting.

Dobbs’ presentation was one-sided in other ways, as well. Fox claims Dobbs informed viewers” about the November 12, 2020 CISA statement as evidence of neutrality. FNN MSJ pp.68, 70. As an initial matter, Dobbs’ discussion of CIS A was not in the accused segment. In the segment in which Dobbs referred to CIS A, Dobbs lambasted CI SA, claiming that “CISA IGNORES VOTER FRAUD” in

graphics highlighting a single sentence from the statement. Ex.56 at 4:51.1’ Dobbs did not confront Powell with the C ISA evidence in the accused broadcast. and he hid from viewers the fact that CISA had confirmed in its November 12 statement, “There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.” Ex.190. As on the day before, Dobbs

and his team had ample evidence from credible public sources debunking the Dominion claims and knew the claims lacked evidence, yet kept this from the viewers. Dorn. MSJ pp.125-127; ioJra 91-92.

Fox’s citation to Dobbs’ airing of Dominion’s denial is also misleading. Dobbs raised Dominion’s disavowal only while teeing up Powell to respond, stating the fact ot the denial and their asking “Your reaction?” Ex.A7 p.5. The graphic Fox points to (buried on page 12 of its appendix but not cited in its brief) further confirms this point: the graphic notes Dominion’s denial but then says “multiple reports seem to show otherwise.” suggesting evidence exists that contradicts Dominion’s denial. (Dobbs similarly dismissed Dominion’s denial earlier in that night’s bi oadcast, saying (talsely) “repoits contiadict that claim.” Ex.A7 p.4.) If Dobbs had been reporting accurately and neutrally, he would have reported on the unilerlying p•• f

that Dominion made available to him that proved the claims were false, Dorn. MS.I

Dobbs similarly discredited the “Democrats, Republicans, and others” who “contested the President’s claims” by calling them the radical Dems, the RINOs,” and so on. Ex.A7 p.2.

p.126, and he would have made clear that he had seen no “verifiable, tangible proofi’ of Powell’s claims, Ex.1 11, Dobbs 69:13-16. Even Fox admits token pushback is insufficient. and it is much less powerful to simply note a bare denial instead of disclosing the proof along with the denial. Supra pp.82-83.

Fox asserts that“Dobbs reminded [Powell] that she needed to prove her claims in court,” but Dobbs’ comment does not in any way show Dobbs’ neutrality toward Powell’s claims. Dobbs noted that Powell would be under a time crunch to prove the claims in court—that’s very ditt’erent than saying that the underlying merits of the claims were doubtful. As for Dobbs’ question about “where their servers are domiciled,” FNN MSJ p.6 , Fox omits the rest of that sentence from the transcript and replaces the ending with a question mark. What Dobbs actually says (falsely) is that “in at least two instances, three instances, we know they’re in foreign counties.” Ex.A7 p.6. Local jurisdictions administer elections locally and Dominion did not send or store votes overseas. Dorn. MSJ pp.65, 68.

Fnir report. Fox does not raise fair report for this segment in its brief.

Opinion. What Fox calls Dobbs ‘opinions” are evidence of non-neutrality that negate the neutral reportage defense. They are also actionable because they are based on false or incomplete facts, as none of the claims they endorse were true. Fox’s claim that Dobbs wasn’t really talking about Powell’s lies, FNN MSJ p.70- 71, does not hold up. given he made the statements in direct response to her lies.

November 14, 2020 — Lou Dobbs, twitter, $179(d).

Fox claims these tweets are not defamatory:

Lou Oobbs @ Lo uJ c bo s

Read all abnut Dominion and Smartmatic voting companies and you’ll soon understand how pervasive this Democrat electoral fraud is, and why there‘s no way in the world the 2020 Presidential election was either  free or fair.       /. ›/ ‹ -ea hOn nIñ+•r‹mg

ñAi: ei ’caFii st    Duuos

Dio y’ou know a foreign company,DOMINIGN,wa s counting our vote in Michigan. Arizona and Georgia and other states.

Dut it wss a front for SMAQ T MATIC, who was reoIIv doing the comput ing.

Look up SMAR T MATIC and tweet me what you think?

It will all come cui

IN ? ,’ A ‘.1   N ov 1*, 2U ZL'      .'v i:to r to il 'he:n'a

$179(d), Dorn. MSJ App.D p.7. Giuliani’s tweet states, falsely but in no uncertain terms, that Dominion is “a foreign company” that “was counting our vote” in multiple states, and “was a front for SMARTMATIC.' These statements have a precise meaning and are capable of being proven true or false.

Fox argues that the last line of Giuliani’s tweet proves Giuliani was presenting “allegations to be investigated rather than. . , facts.” FNN MSJ p.72. That is an absurd reading. “It will all come out” is not a caution but a promise—a talse one.

98

Dobbs, retweeting the Giuliani lies, endorses them by expressly connecting Dominion to “pervasive” “Democrat electoral fraud,” and asserting that fraud (involving Dominion) is ‘why there’s no way in the world the 2020 Presidential election was either tree or fair.” Fox can cite all the cases it can find about “hyperbole” or “outrage” or Twitter, but Dobbs was not weaving some elaborate metaphor or letting off steam. He was telling his readers (falsely) that Dominion was part ot a Democratic election fraud scheme, which (per the retweet) involved serving as a front for Sinartmatic.

Neutral ••p rtnge. Fox makes no discernible neutral reportage argument about this segment in its brief. Nor could Fox: Dobbs endorsed Giuliani‘s false tweet, doubling down with his own false allegations.

Fnir report. Fox does not raise fair report for this segment in its brief.

OR*’nion defense. Even assuming nrguendo that Dobbs’ tweet contained an expression of opinion, the opinion is actionable as based on false facts (Giuilani’s tweet) and implied undisclosed (but nonexisteiit) tacts. Milkovic h. 497 U.S. at 18- 19.

November 14, 2020 — Jeaniiie Pirro, Justice witlt Judge Pennine, $179(e).

Fox’s primary argument about this segment is a version ot its newsworthy allegation” argument, with Fox seeking immunity (despite actual malice) on the grounds that “Pirro used qualifying language” signaling Fox was not broadcasting

facts in this segment. But Powell’s language was unequivocal throughout. There is nothing tentative in statements like “It was created for the express[] purpose of being able to alter votes and secure the reelection of Hugo Chavez and then Maduro.”

I 179(e), Doin. MSJ App.D pp.8-9, Ex.A9 p.9. That is a provably false statement, published (and republished) by Fox, for which Fox is liable. Supra pp.84-85. In any event, Pirro introduced the segment by telling viewers Powell “will explain what

she has unearthed in the creation of Dominion,” Ex.A9 p.2—not what she is alleging,” much less “what she is alleging with no evidence in s• PR**t And all evidence to the contrary.” That signaled to viewers they were about to hear facts.

Neutral reportage. Given the facts, no jury could find this segment to qualify for Edwarâ.: neutral report immunity. Not only did Pirro tell her audience they were about to hear what Powell “has unearthed” about Dominion, but she also pumped up the Dominion allegations by saying in her opening, “And those voting machines created by Dominion, stay tuned. The best is yet to come.” Ex.A9 p.3. That is not neutral.

Fox cites some statements Pirro makes in her opening and interviews with other guests, but those are irrelevant since those guests were not discussing Dominion. FNN MSJ pp.72-74.  What about Pirro mentioning  Dominion’s denial? As Fox‘s own executives acknowledge , ‹upra p.83, reporting bare denials is not real

pushback when you omit the detailed facts debunkiiig the false claims. The screens

that were run for a few seconds as Pirro mentioned Dominion’s denial focused on mechanical issues and glitches, not the detailed denials of Dominion participating in a “huge ci iminal conspiracy” that Powell was accusing. Ex.A9 p.9.

   Pirro

hid trom her viewers the mountain of evidence available to her by November 14 that put the lie to Powell’s claims. That is not neutral reportage.

Fox also asserts that Pirro merely questioned Powell about her allegations, asking how she would pi ove them. Not exactly. For example. Piri o expresses agreement with Powell when Powell asserts that the Dominion software was “created for the express purpose of being able to alter votes and secure the reelection of Hugo Chavez and then Maduro,” and it is one huge, huge criminal conspiracy. ..” Ex.A9 p.9. Piri o agrees that this conspiracy should be investigated by the military

and then adds, by the Department of Justice too, “but who knows anymore.” Id. This is not pushback; this is Pirro amplifying Powell’s conspiracies by falsely implying the Justice Department is ignoring a real scandal.

Perhaps most damning for Fox is Pirro’s laundering of her own conspiracy

theories through Powell. As explained above, Pirro fed conspiracy theories to Powel , bragging to her friends that she was the source for Powell's claims, .iuyrd

p.4     something she never told her audience.

Fair report. As to fair report, Fox’s reference to “the President’s pending lawsuits” is no help to Fox, as none of those lawsuits included any of the Dominion allegations at issue. Supra pp.45-46. Fox also cites “the newly filed suit in Georgia.” FNN MSJ p.77. Contrary to Fox’s representation, that lawsuit was not filed by the President or his campaign. Yoo‹f v. Ra//énsperger, 501 F. Supp. 3d 1310, 1316 (N.D. Ga. 2020) (plaintiff was “a registered voter in Fulton County, Georgia”). Moreover, at the time of the broadcast, that lawsuit likewise did not include any of

the Dominion allegations. Supra p.40. (The bizarre affidavit, appended to a brief

that did not even reference it, was not filed until November 17. Ex.C5.) See ulso Ex.743 (Carlson called it an “irrelevant redacted affidavit from Venezuela”). Fox’s fair report argument for this segment fails every element of the test.

Opinion. Fox’s only opinion argument for this segment seeks to defend Pirro’s commentary that Powell’s claims warranted investigation.” FNN MSJ p.78.

But the comment in question, besides relying on false facts and falsely implying facts exist to justify an investigation, also serves to signal to Pirro‘s viewers that actual responsible parties like the Justice Department cannot be trusted.

November 15, 2020 — Maria Bartiromo, Fox and Friends,

179(f).

Fox tries to dismiss this segment, Bartiromo's “teaser* for an upcoming broadcast. as signaling to her viewers that she was merely talking about “allegations,” not facts. FNN MSJ p.85. The Court should reject this “newsworthy allegation” defense as a matter of law. But it fails on its own terms anyway. Bartiromo didn’t preview upcoming “allegations.” She told her audience that Giuliani   is breaking  so much news on the software that was used iii the voting

machines on election night.” I 179(I), Dorn. MSJ App.D pp.9-10, Ex.A39 p.4. She also says, “There is much to understnnd about Smartmatic. which owns Dominion Voting Systems”—a plainly factual, and false, assertion by Bartiromo. Id. And she

also said her upcoming segment was “very important to understnnd what inns going on witlt @is soffiv‹ire”—again, not the serious allegations being made” (though repeating allegations you know to be false is still actionable), but “what was going on with this software.” Id. This segment fails even Fox‘s improper one-factor newsworthy allegation” test.

It is certainly not neutral reportage, including because Bartiromo again fails to disclose to her viewers all the evidence she had discrediting the source and

debunking the false allegations. Supra p.88; inlra p168-69. And Fox does not even

try to claim it is fair report or opinion.

November 15, 2020 — Maria Bartiromo, Sunday Morning Futures 179(g).

Bartiromo’s broadcast itself is no better for Fox. It is filled with unequivocal factual assertions: “[A] very, very dangerous foreign company that did the votes in 27 states, a company  thats  s not American, a company that’s foreign. a company that has close, close ties with Venezuela and therefore China, and uses a Venezuelan company software that’s been used to steal elections in other countries.” 1179(g), Dorn. MSJ App.D ppl0-12 , Ex.Al0 p.2. “And the software that they use is done by a company called Smartmatic .... Dominion sends everything to Sinartmatic.”

/J. “And President Trump won ... by millions of votes, that were shifted by this software that was designed expressly for that purpose. . .. It was exported internationally for profit by the people that are behind Smartmatic and Dominion. ...

They have done it before....” IJ. p.7. "[W]e’re collecting evidence now from various whistleblowers that are aware of substantial sums of money being given to family members of state officials who bought this software.” Id. p.8. Other than the fact that Dominion does do business in 27 states, every bit of that was false, and provably so. The assertions left no room for doubt.

Fox is liable for knowingly broadcasting (and rebroadcasting) those talse statements, even though they were made by guests. But make no mistake, Bartiromo

told plenty of lies herself on that broadcast. She began by falsely telling her audience they would be seeing “new evidence this morning of backdoors on voting machines.” /J. p.1. Then she falsely told her audience she was showing them a “graphic of the swing states that were using Dominion and tltis softwnre, the Smnrtmatic software.” Id. p.4. She went on to cite an unnamed “source” building on this lie by claiming the Smartmatic software supposedly used by Dominion “has a backdoor” that allows voting to be “mirrored and monitored” and then manipulated. Iâ. Citing unnamed sources to buttress talse assertions is classic defamatory behavior—and runs straight into the sword/shield doctrine, given that Fox has refused to provide any information about supposed “confidential sources.”

!See infra. 174-75. And she closed her segment not by telling her viewers these were all unproven (and indeed talse) allegations, but by thanking Giuliani “for breaking all of this news.” Ex.A10 p.6.

Neutral    reportage.          Bartiromo’s endorsement of the false Dominion/Smartmatic narrative is plain throughout, beginning with her promising her viewers they were about to see ‘evidence” of non-existent “backdoors” when she later admitted under oath she never saw any evidence of any of the false Dominion conspiracy theories. Ex.98, Bartiromo 282:7-17. Her false factual asseHions described above, buttressing her guests’ lies, also take the broadcast out of any conceivable realm of neutral reportage.

Fox claims that Bartiromo “pushed back” on Giuliani’s claims and “pressed” him “at every turn.” FNN MSJ pp.79-80. The transcript and video speak for themselves. Bartiromo did not “press” him for anything; she enthusiastically invited him to tell his (outlandish) story about Dominion, responding to his lies with a simple “yes” or “right” over and over. Ex.A10 p.5. (Giuliani returned the favor when Bartiromo told her anonymously sourced lie about a “backdoor” in the software. /J. p.4.) Asking a few times ‘can you prove this” in this context is not “pushback” (and focused not on whether Giuliani or Powell could prove the allegations at all, but whether they could prove them in time to beat Electoral College deadlines, supra

p.48. Presenting Giuliani with any of the public sources that had at this point debunked the Dominion lies. and which Dominion sent directly to Bartiromo and her producer Abby Grossberg (and which the executives who oversee her program also received), would have been pushback. Sev Doin. MSJ pp.93, 122-123; Ex.363. But Bartiromo did not share any of that with her viewers. .See Cianci, 639 F.2d at

69 (failure to disclose facts undermining the allegations is inconsistent with “neutral” reporting). And even her boss, David Clark, admitted under oath Bartiromo provided no pushback in this segment. Ex.106, Clark 302:20-303:12, 304:18-305:9.