Close, But No Cigar! 🍿

.@TPM_dk makes a critical point here. Universally in defamation cases ITS THE DEFENDANT trying to win on summary judgment. But here it's the plaintiff arguing to the judge there shld be no trial because no reasonable jury cld find Fox *not* liable. https://t.co/9OpRrUA5Pw

— Josh Marshall (@joshtpm) February 17, 2023

No, this is not a "univeral" rule in libel cases. It's a standard practice in civil cases that motions for summary judgment are brought by defendants, because plaintiffs carry the burden of proof. 

Wait, let me start at the beginning:

The plaintiff carries the burden of proof in bringing suit.  That means the plaintff has to put forth evidence in support of the claims made against the defendant.  So usually the defendant brings, at some point, a motion for summary judgment to dismiss the suit, trying to show that there is no evidence to support the plaintiff's claims.

In a motion for summary judgment, the moving party has to show that, even if all the evidence is read in favor of the opposing party, it's not enough to prove the non-moving party's claims.  So a defendant will try to show that even with all the evidence the plaintiff has (usually after extensive discovery and just before parties are ready to consider a trial on the merits), there is no way the plaintiff can prevail/prove its claims in court.  So why waste judicial resources?

That's pretty much how courts look at such motions.  If there is any question of the plaintiff making its case (questions of fact are those upon which reasonable minds can differ, so almost any question of fact can get the plaintiff to trial), the motion is denied.  And it commonly is.  If you recall the 65 suits Trump brought claiming election fraud, they were dismissed because no evidence was ever presented that would warrant a trial.  That's extremely rare, but an even better statement than the Georgia special grand jury's that there was no evidence of fraud in the election.

So now comes Dominion and says the evidence it has from FoxNews (after discovery), proves its case beyond a preponderance of the evidence (the civil standard) and beyond any possible question of fact FoxNews may try to raise in trial.  That's extraordinary, but not unheard of.  In fact, thought I haven't read the Dominion pleadings (I used to get paid to read those things; now I don't have to, and you can't make me!), I think their argument is the only question of fact really needing to be tried is the amount of the damages.

It's extraordinary because, as I say, the plaintiff carries the burden of proof.  Here, Dominion is saying it's met that burden with the evidence it has obtained from FoxNews (the defendant).  Which is pretty much how civil suits are supposed to work; and Dominion says "We've met our burden, what question can there be that our claims are supported by law?"  Questions or law are questions reasonable minds cannot disagree on (although appellate courts disagree on them all the time.  Don't think about it too hard; lawyers don't.  It's a legal fiction, sort of like the "holy mystery" of the Trinity, or the incarnation of God in Christ.  We all have things we don't examine too damned closely.).  Dominion is saying, based on its presentation of evidence and even reading it in the light most favorable to FoxNews (which can't be favorable enough, eh?), that it's all over but the proof of damages.

Whether it actually is or not, the trial is going to be a PR disaster for FoxNews.  So there's that.  Dominion can put Hannity and Carlson, etc., on the witness stand and question them about these texts and e-mails.  That should be fun.

But yeah, it's unusual for a plaintiff to move for summary judgment.  But that's just how screwed FoxNews is.  Let me put it this way:  FoxNews had better do better than this in court:

"There will be a lot of noise and confusion generated by Dominion and their opportunistic private equity owners, but the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan," Fox said in an official statement.

Because the core of the case remains whether or not FoxNews acted with actual malice.  And Dominion thinks its met that burden of proof.  Ball's in Fox's court now.

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