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Media organizations have spent recent weeks feasting on all the emails and text messages emerging from the ongoing defamation case Dominion Voting Systems v. Fox News. They depict a propaganda network in panicked action — promoting election-theft theories that hosts and executives don’t believe, denouncing reporters who do actual journalism, and fretting about audience loss.
Yet a motion that Fox News filed on Friday may outpace all the internal correspondence for sheer risibility. It argues that the Delaware court presiding over the case should maintain the confidentiality of discovery material already redacted by the network, shielding it from the public’s curious eyes. As anyone who has read through the Dominion filings can attest, swaths of black lines cover passage after passage in briefs and exhibits. Could the redacted text be as scandalous as the public text?
Fox News lawyers say one reason for the confidentiality is that competitors will pounce: “Prematurely disclosing these other details on Fox’s internal and proprietary journalistic processes may allow competitors to appropriate these processes for their own competitive advantage, to Fox’s detriment, and may chill future newsgathering activity,” the filing reads.
Hold on here. Given the revelations that have emerged thus far from the litigation, what “journalistic processes” are in place at Fox News, proprietary or otherwise? And if another media organization moved to “appropriate” them, wouldn’t its editor in chief be sacked?
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One of the tidbits to emerge from discovery in the case, after all, is that Fox has no written editorial guidelines — “remarkably,” writes Dominion in a Feb. 16 brief seeking summary judgment. When asked about her journalism standards, Fox News Media CEO Suzanne Scott responded, “I would rather be right than first on a story. … Better to have the facts first.” Dominion argues that Fox News did have the facts at hand in reporting about the company. When network hosts and guests floated theories that the voting machine company played a role in the alleged election fraud of November 2020, Dominion argues, they knew it was false.
Behind Dominion’s claims lie pages and pages of evidence. In its brief opposing the unsealing of the redactions, Fox News deplores the volume. “The summary judgment record in this consolidated case consists of over 15,000 pages of cross-motion briefing, declarations, and documents,” it notes. “Over 12,000 of those — 80% — were filed by Dominion.” It also says that over the course of three rounds of briefing, “Dominion jammed the record with 700 exhibits, many of which were personal text messages between Fox employees with no connection to any of the challenged broadcast or statements.”
What we have here, argues Fox News, is a “kitchen-sink approach” that has “resulted in dozens and dozens of news articles commenting on a subset of Dominion’s splashy (but legally questionable) defamation ‘evidence.’ ” The network’s lawyers say their redactions and withheld documents rest on five rationales: “confidential third-party sources; proprietary newsgathering processes; nonpublic financial information; sensitive business and personnel details; and personal identifying information.” Delaware law authorizes the sealing of information when the parties have “good cause” to do so — i.e., when the material in question is trade secrets, “third-party confidential material” or “nonpublic financial information.”
Last week, a group of media outlets — NPR, the New York Times and the Associated Press — filed a challenge to the redactions. A focus of their brief is Fox News’s attempt to protect materials falling under “proprietary journalistic process.” That category, notes the brief, is separate from the sacred status of materials that qualify for the so-called reporter’s privilege — which covers confidential sources and “materials” obtained in newsgathering and dissemination.
With its “proprietary journalistic process” formulation, in other words, Fox News is apparently attempting to stretch the basket of legal protections for its emails, text messages and other stuff. The media outlets argue: “How journalists perform their craft is widely-taught and widely-known. There is nothing proprietary about the fact that reporters interview sources, check the facts, investigate leads and tips, seek corroboration and confirmation, write, edit, check copy, and re-write.” Correct. At journalism conferences, reporters often share tips about how to exploit freedom-of-information laws, scour the internet for sources and secure contact information for hard-to-find individuals.
For its part, Fox News says it’s seeking to protect “documents that discuss concrete details of how editorial decisions are made, how reporters source their stories, and how Fox’s ‘brainroom’ conducts fact-checks” — and not the more generic categories cited by the media outlets seeking the redactions’ unsealing. “Proprietary newsgathering processes,” says the Fox News brief, “are the kind of competitive business information that justifies maintaining the seal.”
Judge Eric M. Davis is expected to rule on the redaction challenges — Dominion has also sought unsealing — in the coming days. A Fox News spokesperson issued a response: “Fox’s redactions are consistent with the law and court rulings.”
Whatever the judge’s decision, Fox News’s argument that competitors stand to benefit from the network’s journalistic practices signals a desperation to avoid an additional round of damaging disclosures. At this point, it’s hard to say which is more severe — its legal predicament or its public relations predicament.
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