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Will Fox News pay for spreading lies about voter fraud?

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. A trial is scheduled to begin Monday that is the highest-profile case so far to test whether allies of Donald Trump will be held accountable for spreading falsehoods about the 2020 election. That's how my guest, Jeremy Peters, describes the $1.6 billion defamation suit filed against Fox News by Dominion Voting Systems, which manufactures voting machines that were used in several battleground states in the 2020 presidential election. Dominion claims that Fox's hosts and commentators falsely stated that Dominion was part of a conspiracy to steal votes from Donald Trump with the larger goal of stealing the election. Fox's defense revolves around the First Amendment. This case is likely to impact the future of Fox, other media organizations, First Amendment law and elections. What makes it especially fascinating is the documents that were released as part of the lawsuit's filings, including internal emails and messages which show that many Fox hosts and executives didn't believe the claims of voter fraud that they broadcast on Fox.

Jeremy Peters has been reporting on the case. He covers the media and its intersection with politics, law and culture for The New York Times. He's also the author of the book "Insurgency: How Republicans Lost Their Party And Got Everything They Ever Wanted." We recorded our interview yesterday morning.

Jeremy Peters, welcome to FRESH AIR. Just give us an overview, a brief overview of why this case is so important. What's at stake?

JEREMY PETERS: In the largest sense, it's that very few people have been held to account for the widespread lies that swirled around the 2020 presidential election. No player as significant as Fox News in our political system has been forced to answer for those lies. So you have the first opportunity, I think, for a judgment against the people who spread rampant disinformation and sowed real doubts about the integrity of our electoral system. And then there's the fact that you rarely get a defamation case that proceeds this far along against a media company. Usually, media companies will settle these cases quietly, and you'll never hear about them again. To have an entity as profitable and powerful as Fox face a jury and be forced to answer questions about its conduct is - it's really remarkable. It just doesn't happen.

And it also doesn't happen very often that you have a case where the evidence is so clear and so damning against Fox. Legal experts tell me that rarely have they seen a case this strong. Dominion Voting Systems has amassed tens of thousands of documents, text messages, emails from Fox executives, hosts and producers, many of which show, at a minimum, they had serious doubts about what they were telling their audience. And in some cases they knew it was wrong, but they did so anyway in this relentless drive for ratings and profit.

GROSS: On what grounds is Dominion suing Fox?

PETERS: They are suing for $1.6 billion in damages, claiming that the lies told on the air by Fox guests like Sidney Powell, Rudy Giuliani and hosts like Lou Dobbs, Maria Bartiromo and Tucker Carlson - that those so damaged the company and so endangered the staff to the point where they were receiving regular death threats and in some cases are still subject to threats. Recently, there was somebody outside the Dominion headquarters in Denver who was carrying a gun. People have called Dominion leaving voicemail messages saying, we're going to blow up your offices. So what Dominion is saying is, effectively, Fox knew that what it was saying about our voting machines was wrong, but it did so anyway. And that's not just textbook defamation, but it's the kind of harm that really kind of cuts at the core of American democracy by undermining people's faith in our elections.

GROSS: Well, just recently, Shasta County, Calif., which is a very conservative county, decided to stop using Dominion voting machines, and it seems like that was influenced by the conspiracy theories. So that would be an example of - a very recent example of Dominion losing clients as a result of these false conspiracy theories.

PETERS: Yes, and that's part of what Dominion will argue if this gets to the damages phase, if the jury in Delaware finds that Fox did act with this legal term called actual malice, which is required to win a defamation case. You have to essentially, if you're Dominion, get inside the heads of Fox employees and be able to prove that they had serious doubts about what they were saying, or that they knew it was false but put it on the air anyway. And because of all of these messages that we have from folks like Tucker Carlson, Rupert Murdoch, Suzanne Scott, the chief executive of Fox News, we can actually do that. We can see inside their minds and see exactly what they were saying to each other and how they had real doubts about what people were saying on their airwaves.

GROSS: Let's hear an example of what people were saying on the Fox airwaves. And this is an interview on Maria Bartiromo's show. She's interviewing Sidney Powell, who was one of the chief purveyors of the conspiracy theory that Dominion was part of a conspiracy to steal the election from Trump. And Powell, as I said, was a legal adviser to Trump. She was a guest several times on Bartiromo's Fox show. And here's an example of what she said while they were talking about Dominion, and Bartiromo speaks first.

(SOUNDBITE OF ARCHIVED RECORDING)

MARIA BARTIROMO: Sidney, we talked about the Dominion software. I know that there were voting irregularities. Tell me about that.

SIDNEY POWELL: That's to put it mildly. The computer glitches could not and should not have happened in - at all. That is where the fraud took place, where they were flipping votes in the computer system or adding votes that did not exist. We need an audit of all of the computer systems that played any role in this fraud whatsoever. And, you know, Joe Biden had it right. He said that he had the biggest voter fraud organization ever and he didn't need people's votes now. He would need people later. They had this all planned, Maria. They had the algorithms. They had the paper ballots waiting to be inserted if and when needed. And notably, President Trump's vote in the blue states went up enormously. That's when they had to stop the vote count and go in and replace votes for Biden and take away Trump votes.

BARTIROMO: I've never seen voting machines stop in the middle of an election, stop down and assess the situation. I also see reports that Nancy Pelosi's longtime chief of staff is a key executive at that company. Richard Blum, Senator Feinstein's husband - significant shareholder of the company. What can you tell us about the interest on the other side of this Dominion software?

POWELL: Well, obviously, they have invested in it for their own reasons and are using it to commit this fraud to steal votes. I think they've even stolen them from other Democrats in their own party who should be outraged about this also. Bernie Sanders might very well have been the Democratic candidate, but they've stolen against whoever they wanted to steal it from.

GROSS: OK, so that was Sidney Powell on Maria Bartiromo's show on Fox News November 8, 2020. So that was just - the election was November 3, so that's just a few days after the election. Can you interpret what she's talking about, for instance, when she says that voting machines were stopped in the middle of an election to assess the situation? Like, what are they talking about?

PETERS: It's so preposterous, Terry. And I think what they're talking about were instances in which some municipalities just stopped counting because it was late, and the vote counters tabulators needed to go home. They also may be referring to this incident that was widely misrepresented and distorted in right-wing media where a county in northern Michigan, the - one of the officials, the elections officials, just made a mistake, and he recorded Biden's totals as Trump's totals and vice versa. They realized that it was a human error. It had nothing to do with Dominion machines. But this became fodder for conspiracy theorists saying, see? Look; these machines can flip votes, and they were taking votes away from President Trump, or they were trying to.

But the Maria Bartiromo instance that you just played on November 8 is the seminal moment in Dominion's case. It is the first time on Fox News where these conspiracy theories about Dominion machines get an airing. It's the first time the audience starts hearing about them. And inside Fox News, what we now know from the discovery in this case is that segment between Sidney and Maria Bartiromo rated so well. In fact, some executives and producers talking about it are just giddy after the fact, saying, did you see the ratings? This stuff is gold. And that's significant legally for Dominion because it allows them to make the case that Fox did act with actual malice because it saw dollar signs in the ratings, and it knew that if it put Sidney Powell on the air, they would get even bigger ratings. So that's what they continued to do after November 8. And that's why we're sitting here today talking about whether or not Rupert Murdoch is going to have to write a check for $1.6 billion.

GROSS: Before we move on from that clip, I just want to fact-check another thing that Sidney Powell said, and this was about Nancy Pelosi and Dianne Feinstein. The Associated Press, the AP, did a fact-check on that and said it's all false. A former aide to Pelosi has represented Dominion as a lobbyist, but so have lobbyists who have worked for Republicans, and claims that Feinstein's husband, Richard Blum, holds a stake in Dominion are baseless. So I just want to get that on the record. So there's something really interesting about who the source was for some of Sidney...

PETERS: Yeah, we should talk about that.

GROSS: Yes, for some of Sidney Powell's claims. And there were signs that she was mentally unstable. Tell us about this source, Marlene Bourne, who claimed to be a tech analyst.

PETERS: So, again, this is a really significant piece of Dominion's case because it shows that they acted recklessly. A jury could conclude after seeing this email from this source that no one reading it would think that this person is credible, and so therefore they shouldn't be relying on it for any of their coverage. And I'll tell you what was in that email. It's truly bonkers. It's a woman by the name of Marlene Bourne, who Sidney Powell had been speaking to. And in this email, she describes to Sidney Powell how she talks to ghosts and listens to the wind, and that she has been "internally decapitated" - that's a direct quote. I don't even know what that means.

GROSS: Me neither.

PETERS: (Laughter) But it's clear as day that a person like that is unreliable, mentally unstable. I think if I had forwarded that email to your producers saying that this was a source for my story, I would never be appearing on FRESH AIR. And - but the reason...

GROSS: Can I add a couple of other things she said?

PETERS: (Laughter) Yes, please.

GROSS: She said she sees what others don't see and hears what others don't hear and that it appears that she was shot in the back after giving the FBI a tip.

PETERS: Right.

GROSS: It appears that she was shot in the back (laughter).

PETERS: Yeah. I mean, it's just nuts. And that's the kind of language that people at Fox started to use to describe Sidney Powell. They called her crazy. They called her nuts. They called her things that I will not repeat on this air. And that, again, points to the doubts that they had about her and shows that, you know, they knew that this was all reckless nonsense.

The question about Maria Bartiromo is interesting in another sense, that she appears to really want to believe this stuff is true. She talks to people like Steve Bannon, and we can see her texts, and they're talking about voter fraud and how the president's lawyers are going to be able to prove all of this stuff, of course, that they never prove. But Maria Bartiromo had in her possession this email from the woman who talks to ghosts. She had seen it. And in her deposition, she recalls reading it at the time. That is evidence that Dominion can present to the jury to say Maria Bartiromo was one of the people at Fox News who acted with reckless disregard for the truth because she could see that Sidney Powell was relying on someone who wasn't reliable at all, but she allowed Sidney Powell to go on the air anyway. And it's very compelling evidence in Dominion's favor.

GROSS: Well, we need to take a break here. If you're just joining us, my guest is Jeremy Peters. He's covering the Dominion defamation suit against Fox News. He covers the media and its intersection with politics, law and culture for The New York Times. We'll be right back after a short break. This is FRESH AIR.

(SOUNDBITE OF AVISHAI COHEN'S "GBEDE TEMIN")

GROSS: This is FRESH AIR. Let's get back to the interview I recorded yesterday with Jeremy Peters, who has been covering the defamation suit filed against Fox News by Dominion Voting Systems. Dominion voting machines were used in several battleground states in the 2020 presidential election. Dominion is alleging that Fox hosts and commentators knowingly made false statements about Dominion being part of a conspiracy to steal votes from Trump and give them to Biden, resulting in stealing the election from Trump. Jeremy Peters is covering the case. He covers the media and its intersection with politics, law and culture for The New York Times.

What is Fox's defense?

PETERS: So Fox is, after this week in court, going to be able to mount a less robust First Amendment defense than it would like to. The judge in this case has now ruled twice that the facts are so uncontested in Dominion's favor that the lies that were spread about Dominion machines supposedly having these software backdoors that allowed people to switch votes from one candidate to the other if they wanted to, that kind of stuff is just - it's so wild and fanciful and wrong that the jury isn't even going to have to consider whether or not - and this is called - legally, it's called falsity. Falsity is off the table. So Dominion's lawyers now have a much easier job. They don't have to convince a jury that this stuff is nonsense. The judge has already said that it is.

Fox wanted to be able to argue that Sidney Powell, Rudy Giuliani, these folks who came on the air and said untrue things about Dominion, they were newsmakers and what they were saying was inherently newsworthy because they were representatives of the president of the United States. Well, the judge has now said that Fox can't argue that because, you know, these statements were demonstrably false. So what's left for Fox News to argue before the jury now is that its hosts and guests didn't act with actual malice. It's going to try to point to evidence that showed some people inside Fox News were waiting for the evidence. So they put this stuff on the air because they were under the assumption - because the president's lawyers had told them so - that they had the proof to back this up in court. They had affidavits. And so Fox's lawyers will be able to say that shows they weren't acting with actual malice. They preliminarily provided the audience with a set of facts that they believed the president would be able to prove in court.

Now, of course, that never happened. And, you know, a jury could buy that. You know, I don't want to make it sound like Dominion's case is a total slam dunk, as strong as it is. It depends on who's on the jury. And really, it only takes one, two, you know, very, you know, Trump-leaning jurors to throw a whole wrench in this for Dominion.

GROSS: One of the cases that Fox wanted to make was, hey, we were just covering the news. These stories were in the news. We were covering them. But the judge already knocked down that argument.

PETERS: Yes. And that really limits Fox's ability to mount the kind of legal defense that it wanted to mount. In court before the judge, in their legal proceedings, in interviews with me, Fox's lawyers said that their hosts were simply doing their job as people who interviewed newsmakers. And what was more newsworthy than the president's lawyers arguing that the presidential election wasn't free or fair? OK. That sounds like a pretty decent argument. But as recently as this week, the judge in the case admonished Fox lawyers, saying they cannot broach that subject, and if they do, he will cut them off and tell the jury, no, that is incorrect.

GROSS: Is it unusual for a judge before the actual trial to say these kinds of arguments are out of bounds, I won't accept them?

PETERS: So lawyers in cases like this go back and forth about what the jury will be allowed to hear. That's pretty standard. What's not very common is what happened to Fox when the judge issued what's called his summary judgment ruling. And that's when he basically said Dominion doesn't have to argue half of its case to the jury because I'm settling that question right now. These statements about Dominion were false. That's not up for debate. The only question the jury has to decide now is whether or not Fox acted with actual malice.

Another thing the judge took off the table that was a big piece of Fox's argument - and, you know, this is also going to be very difficult for them at trial - is all along, you know, Fox News has been an opinion network that had a rather robust news staff. And in the days of its former chief executive, Roger Ailes, they would point to that news staff, its White House correspondents, its congressional correspondents, its Vatican correspondent, and say, see, what's said on the air in primetime by people like Hannity is just part of what we do. We have all of these honest journalists who work for us and do a pretty good job.

Well, Fox tried to argue that its 2020 election coverage included many fact checks and many reports stating that these allegations about Dominion machines were unfounded. And that's true. On many shows, hosts like Dana Perino, a former White House press secretary for George W. Bush, they were very skeptical of this. And they were very upfront with the audience. But the jury's not going to be able to hear that because the judge has said it doesn't matter. You can't tell your audience lies in one hour and put someone on in another hour saying that they are lies and get away with it. That doesn't absolve you.

GROSS: Well, we need to take another break here. So let me reintroduce you. My guest is Jeremy Peters. He's a reporter for The New York Times who covers the intersection of media, politics, culture and law. And we're going to talk more about the defamation lawsuit filed against Fox News by Dominion Voting Systems after we take a short break. I'm Terry Gross, and this is FRESH AIR.

(SOUNDBITE OF FRANK ZAPPA'S "EAT THAT QUESTION")

GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to the interview I recorded yesterday with Jeremy Peters, who's been covering the defamation lawsuit filed against Fox News by Dominion Voting Systems, whose voting machines were used in some battleground states in the 2020 presidential election. Jeremy Peters has been covering the lawsuit. It goes to trial Monday. Dominion is alleging that Fox hosts and commentators knowingly made false statements about Dominion being part of a conspiracy to steal votes from Trump and give them to Biden, resulting in stealing the election from Trump.

Another argument Fox has made is it was commentators who were making these statements, not news. So they've kind of argued both sides, that we were just covering the news. But they've also argued, no, no, it was commentators, not reporters, who were making these claims.

PETERS: Yes, that's part of their First Amendment defense. They have tried to say that, look, you know, what Tucker Carlson was saying is protected commentary. What Sean Hannity was saying - you know, same thing. The First Amendment allows hosts to offer their opinions about significant news events. We'll see how that goes over with the jury because, of course, there's now reams of evidence that folks like Tucker Carlson didn't believe a word of what people like Sidney Powell said. That's - same thing that Sean Hannity has acknowledged in his deposition. A direct quote - he says, "I didn't believe it for one second," referring to what Sidney Powell was saying. Yet he allows her - gives her a platform on his radio show, then later that night on his Fox News show, where she continues to spread lies about Dominion machines.

So that type of evidence, you know, that we - it's so rare, and I can't emphasize this enough. Like, the evidence in this case - it's just - you don't get evidence like this in a defamation case that shows so clearly that there were many people in positions of power who had serious doubts about what they were reporting on the air. And that is incredibly legally significant and to Dominion's benefit.

GROSS: One of the reporters on Fox reported on a press conference held by Rudy Giuliani and Sidney Powell, two of Trump's legal advisers, and they were talking about conspiracies to steal the election from Trump. She reported on the press conference and fact-checked it and showed that the conspiracy theories being floated were factually wrong. What consequences did she face for that report?

PETERS: Her name is Kristin Fisher. She no longer works at Fox. She left the network in large part because of this incident. After she fact-checked that press conference on the air, she received an angry phone call from her boss, who said, you need to do a better job of respecting our audience. And this is a sentiment that had been conveyed to her boss by the chief executive of Fox News, who, at this point in November of 2020, was looking at the ratings decline Fox had been suffering and the ratings gains that competitors like Newsmax had been enjoying because they were more overtly pro-Trump. And Suzanne Scott panicked. Rupert Murdoch panicked. And they basically shut down an honest discussion of what really happened in the 2020 presidential election. And the way they do that is by telling their correspondents, effectively, only tell our audience what they want to hear, and they don't want to hear that President Trump has lost.

GROSS: So part of what makes this case so important and fascinating is the texts and emails and the depositions that have been made public, and we know now that what Fox hosts and commentators said in public on the air about Trump and about the conspiracies to steal the election are very different from what they said in private to their fellow colleagues.

So let's start with Tucker Carlson. He's been a big defender of Trump on the air. But in private messages, he called Trump a demonic force, a destroyer - this was in a text with his producer - and he privately called Powell a nut. He said, I tried to make the White House disavow her, which they obviously should have done long before. He ridiculed claims about the plot to steal the election as shockingly reckless and absurd in a text message in November of 2020. So what are some of the things he did on the air that are counter to what he said in private to colleagues?

PETERS: Yes, Tucker Carlson even told - that text message you just referred to is a text message he sent to Sidney Powell telling her, you know, show us the evidence. And at one point in November 2020, Tucker goes on his show and he says, look, Sidney Powell promised us this evidence. She hasn't given it to us, and this raises real doubts about her credibility and her story. The blowback from the audience at hearing that truth from Tucker Carlson - because he - at the time, he was telling his audience the truth - they didn't want to hear it.

The backlash was so intense, Tucker Carlson drops the subject, and you see text messages, both predating this Sidney Powell incident and after, in which his producers are saying, you know, our audience wants to hear about voter fraud and we're not covering it. And they express their serious misgivings about the whole notion that the election was somehow tainted. They say openly, there just wasn't enough fraud to have changed the outcome. This stuff makes me sick. And while this case raises a lot of really big questions about our democratic system and our news media and the susceptibility that people have to disinformation and the willingness of bad actors to profit from that disinformation, the case is ultimately going to turn on very small incidents.

GROSS: Another thing about Tucker Carlson - and he also trades emails with his producers in January. There's one that you mentioned from January 4 in which he said, we're very close to being able to ignore Trump most nights. I truly can't wait. I hate him passionately. And then on January 7 - so this is the day after the attack on the Capitol - Tucker Carlson's producer wrote about his fears of more chaos and said, the Trump anger spiral is vicious. And Carlson responded, that's for sure - deadly. We've got two weeks left. We can do this - meaning two weeks until Trump is out of office and Biden becomes president. We've only got two weeks left. We can do this. So not only do what he and guests said on his show contradict those private messages, he got exclusive access to, like - what? - thousands of hours of video from January 6 and reedited it in a way to make it seem like these were kind of quiet tourists. They were, like, acting like quiet tourists passing through the White House.

PETERS: Right.

GROSS: These are the rioters who broke into the Capitol. How does anybody square that? I don't know that that's relevant to the actual, to the defamation lawsuit. But what does it say about Tucker Carlson and Fox?

PETERS: It says that Tucker Carlson is completely disingenuous when it comes to the type of commentary he provides his audience. He tells them what he thinks they want to hear, even if he doesn't believe that. I mean, as recently as this week, Terry, Tucker Carlson interviewed Donald Trump and tells his audience, quote, "for a man who is caricatured as an extremist, we think you will find what he has to say moderate, sensible and wise." Now, this is someone who Tucker has called a demonic force, a destroyer, somebody he expresses clear contempt for.

And he's telling his audience now that this former president is moderate, sensible and wise. It just doesn't track. And I think - you know, I don't want to be too cynical about this. But I really don't think there's any other way to see that other than he thinks his audience isn't ever going to know what he said about Trump privately because we all live in such siloed media worlds. The Tucker Carlson audience is only being presented with the news that his producers and he think they want to hear.

GROSS: Well, we need to take another break here. If you're just joining us, my guest is Jeremy Peters. He's covering the Dominion defamation suit against Fox News. He covers the media and its intersection with politics, law and culture for The New York Times. We'll be right back after a short break. This is FRESH AIR.

(SOUNDBITE OF SLOWBERN'S "WHEN WAR WAS KING")

GROSS: This is FRESH AIR. Let's get back to the interview I recorded yesterday with Jeremy Peters, who has been covering the defamation suit filed against Fox News by Dominion Voting Systems. Dominion voting machines were used in several battleground states in the 2020 presidential election. Dominion is alleging that Fox hosts and commentators knowingly made false statements about Dominion being part of a conspiracy to steal votes from Trump and give them to Biden, resulting in stealing the election from Trump. Jeremy Peters is covering the case. He covers the media and its intersection with politics, law and culture for The New York Times.

So I just want to get to one more thing about Sidney Powell. Lou Dobbs was one of the big purveyors of the conspiracy theory on Fox News. He hosted his own show on Fox Business News. And Dobbs' producer said that he believed that Sidney Powell, one of Trump's legal advisers, was, quote, "doing LSD and cocaine and heroin and shrooms."

PETERS: (Laughter).

GROSS: A strong expression of skepticism. Yet when Lou Dobbs had Powell on his show a few days after that message, he described Sidney Powell as one of the country's leading appellate attorneys, which is surely not true. So of course, the question is, if people inside FOX - some executives, hosts - didn't believe the conspiracy theories, why were they broadcasting them? And the answer has to do with ratings. Tell us about how ratings and the fear of losing viewers to even more conservative networks like Newsmax and OAN - One America News Network - how that figured into their programming plan.

PETERS: So one thing that's always been true about Fox News is that after a Republican loses the White House, its ratings dip. I mean, this happened in 2008 after Obama won election. It happened in 2012 after he won reelection. But every time that happened, the ratings would tick back up a few weeks or months later because Fox could firmly establish itself as the voice of the opposition to the Democratic president in the White House. And of course, Obama was a very effective and profitable foil for Fox News and their negative coverage of him. And, you know, frankly, their endorsement of certain conspiracy theories about his background and his religion were huge for the audience, not just huge for the audience, but huge for certain very important viewers like Donald Trump himself, who learned about many of the conspiracy theories he would later float about Obama from watching Fox News and other conservative media.

So fast-forward to 2020, when the audience turns on Fox because they're upset that Fox has told them the truth, that Donald Trump did not win reelection and that Joe Biden is the president-elect. Trump goes after Fox directly. Viewers switch the channel. They start watching Newsmax. And people like Rupert Murdoch at the very top of the company see this, and they panic. In one email, he writes to Suzanne Scott right after the election is called for Biden, subject line is ratings. And he says to her, quote, "getting creamed by CNN." Guess our viewers don't want to watch it. And that sets in motion this more widespread panic inside Fox News at its executive level. And they really start to begin to worry about this little competitor that had never really drawn big ratings before, Newsmax, because Newsmax is - the hosts there are willing to lean into the conspiracy theories about voter fraud much harder than Fox initially was.

And that's when, as Dominion has laid out in its case, you see this moment where Suzanne Scott tells her lieutenants at the network, we need to respect our audience. And that's basically code for we can't tell them anything that they'll find upsetting because they're changing the channel.

GROSS: Well, getting back to Rupert Murdoch and what he said behind the scenes. In an email, he said - and this was after January 6 - he said Trump insisting the election being stolen and convincing 25% of Americans was a huge disservice to the country, pretty much a crime, inevitable it blew up on January 6. Best we don't mention his name unless essential, and certainly don't support him. We have to respect people of principle. And if it comes to the Senate, don't take sides. I know he's being over demonized, but he brought it on himself. That seems like evidence - right? - to be used in the defamation case.

PETERS: And it is. It's something that Dominion cited in its presentation to the judge when they were arguing the summary judgment phase of the case. It's definitely something I expect to come up at trial, especially when they put Rupert Murdoch on the stand.

GROSS: Well, let's take another break here. If you're just joining us, my guest is Jeremy Peters, who's covering the Dominion defamation lawsuit against Fox News for The New York Times. Peters covers media and its intersection with politics, law and culture for the Times. We'll be right back after a short break. This is FRESH AIR.

(SOUNDBITE OF HOLT VAUGHN'S "BITTER SUITE")

GROSS: This is FRESH AIR. Let's get back to the interview I recorded yesterday with Jeremy Peters, who's covering the defamation lawsuit filed against Fox News by Dominion Voting Systems. He's covering it for The New York Times, where he covers the intersection of media with politics, law and culture.

One of the things that happened really recently is that Dominion went to the judge and said, we want access to more of Rupert Murdoch's private messages, because when - during the period of disclosure, we didn't realize how big a role Murdoch played in Fox News and in deciding what was going to be covered and how it was going to be covered. Tell us about this recent development.

PETERS: So this is something to watch over the next few weeks as the trial progresses. Fox initially tried to downplay the role that not just Rupert Murdoch has, but that Lachlan Murdoch has in running Fox News. They long insisted that the Murdochs were too busy with big-picture stuff to get involved in Fox day-to-day. We now know that Murdoch is so involved, he's even suggesting certain guests that should appear on Fox News. So, you know, we may yet see more detail about just how involved he was in steering coverage on the network after the 2020 election.

GROSS: So what might the consequences be for Fox News if it loses this defamation suit?

PETERS: I think at this point, the realization has set in at Fox that they are quite likely to lose, or at the very least, they shouldn't be surprised if they lose. So they are looking already at how they would appeal this. And I think in their world, getting this kind of case on appeal to the Supreme Court, where the Supreme Court could reopen defamation law, is what they're thinking. Many conservatives have been pushing the Supreme Court to do just that. We'll see if that happens. But I think if they lose, most immediately, what it says is that one of the most powerful media organizations in the country has to pay for the dishonest way it covered our democracy.

GROSS: And you mean literally pay...

PETERS: Literally pay.

GROSS: ...Like with money? Yeah.

PETERS: You know, I think the questions of what that means for Trump, his base and the larger conservative media ecosystem are much more complicated because I just honestly don't know how - I mean, we know they're not really covering it, this trial, very much on the right. And I don't know that those kinds of lessons of accountability will sink in with the average conservative.

GROSS: So I think you mentioned this earlier, but some First Amendment lawyers who always defend the media against defamation are siding with Dominion against Fox. What are their concerns in this case?

PETERS: Their concern - their concerns revolve around this push from many on the right - mostly, it comes from the right - to revisit defamation law in this seminal case, New York Times v. Sullivan, that established the actual malice standard, which - it's a very high legal bar. If you sue an entity like Fox News for defamation and you're a public figure, you have to prove that Fox News knew what it was saying was false or acted so recklessly that it overlooked obvious truths. And because that's such a high bar. Many conservatives have been saying, we want the Supreme Court to reopen this and rethink whether that bar needs to be lowered. And if Dominion wins this case, it in a sense will show that defamation law is working, at least that's how some of these First Amendment scholars will see it. I imagine some conservatives and certainly Fox News will see it differently. But it could kind of short circuit this effort from the right to reopen defamation law.

GROSS: Well, do the First Amendment lawyers who are siding with Dominion also not want the First Amendment to protect baseless conspiracy theories and not protect media that promotes baseless conspiracy theories?

PETERS: Right. They think exactly that, that a judgment against Fox will demonstrate that the law is what the law is, that the First Amendment doesn't protect lies, that you can't defame somebody and call it constitutionally protected speech.

GROSS: Or call it news.

PETERS: Or call it news.

GROSS: Well, Jeremy Peters, thank you so much for talking with us. I really look forward to your coverage of the defamation trial. Thank you for being here today.

PETERS: Oh, thank you for having me back, Terry.

GROSS: Jeremy Peters is a New York Times reporter. He's covering the Dominion Voting Systems defamation lawsuit against Fox News. After we recorded our interview yesterday morning, some surprising revelations emerged during the second day of the pretrial hearing. As Jeremy Peters and Katie Robertson reported later in the day in The New York Times, the judge overseeing Dominion's lawsuit against Fox News said that he was imposing a sanction on the network and would very likely start an investigation into whether Fox's legal team had deliberately withheld evidence. The evidence included recordings of the Fox News host Maria Bartiromo pre-interviewing Trump's legal advisers, Sidney Powell and Rudy Giuliani, which Dominion said had been turned over only a week ago.

In the tape of Giuliani, he admits he had no hard evidence to back up his claim that Dominion voting machine software could be manipulated. The judge also said he might appoint a special master to investigate Fox's handling of documents during the discovery process. It was only made clear yesterday that in addition to being the chair of Fox Corporation, the parent company of Fox News, Rupert Murdoch is also an executive at Fox News. Had Murdoch's role at Fox News been disclosed, Dominion would have had access to more of Murdoch's documents as part of the discovery process. The judge said that if Dominion had to do additional depositions or redo any, then Fox would have to do everything they can to make the person available, and it will be at a cost to Fox.

(SOUNDBITE OF HERLIN RILEY'S "RUSH HOUR")

GROSS: If you'd like to catch up on FRESH AIR interviews you missed - like this week's interview with All Things Considered host Mary Louise Kelly, whose new memoir is about juggling her career and parenting; or with Josh Groban, who's starring in the new Broadway revival of the Sondheim musical "Sweeney Todd" - check out our podcast. You'll find lots of FRESH AIR interviews.

FRESH AIR's executive producer is Danny Miller. Our technical director and engineer is Audrey Bentham. Our interviews and reviews are produced and edited by Amy Salit, Phyllis Myers, Roberta Shorrock, Sam Briger, Lauren Krenzel, Heidi Saman, Therese Madden, Ann Marie Baldonado, Seth Kelley and Susan Nyakundi. Our digital media producer is Molly Seavy-Nesper. Thea Chaloner directed today's show. I'm Terry Gross.

(SOUNDBITE OF HERLIN RILEY'S "RUSH HOUR") Transcript provided by NPR, Copyright NPR.

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Combine an intelligent interviewer with a roster of guests that, according to the Chicago Tribune, would be prized by any talk-show host, and you're bound to get an interesting conversation. Fresh Air interviews, though, are in a category by themselves, distinguished by the unique approach of host and executive producer Terry Gross. "A remarkable blend of empathy and warmth, genuine curiosity and sharp intelligence," says the San Francisco Chronicle.