A month after Dominion Voting Systems sued San Diego-based One America News for $1.6 billion over false reporting on the 2020 presidential election, OAN’s owners asked for more time to formally respond.
The so-called answer — originally due Sept. 10, 2021 — was delayed several more times.
On Friday, OAN parent Herring Networks Inc. finally filed its answer — 16 months after first sought.
Among its 32 defenses, the far-right network says any trial can’t be held in the District of Columbia “because many citizens of this District have unique animosity toward President Donald J. Trump and individuals and businesses thought to be supportive of President Trump.”
OAN CEO Robert Herring Sr. and his network president son Charles Herring were joined by co-defendants Chanel Rion and former San Diegan Christina Bobb in denying they libeled the election-tech company with rigging accusations.
The 317-page filing responded individually to 331 allegations and 360 footnotes in the original complaint.
Herring lawyers used this reply 93 times: “Defendants deny that OAN knowingly reported anything that was false (or engaged in reckless disregard for the truth).”
Dominion says it sent OAN and its agents 10 separate retraction demand letters between Dec. 18, 2020, and Aug. 4, 2021.
“Nevertheless, OAN repeatedly doubled down on its false and defamatory statements by continuing to publish and republish them. … OAN continues to make new false and defamatory statements about OAN on its many platforms to this day,” Dominion said in August 2021.
Attorneys for both sides didn’t respond to email questions Monday.
But media law expert Clay Calvert offered some insights.
At this “procedurally early stage” of the case, he said, it is very common for a defendant to deny most — even nearly all — of a plaintiff’s allegations to prevent a quick decision for the plaintiff.
“Herring’s denial of knowingly or recklessly reporting false statements about Dominion merely means that it is not admitting to publishing the statements with actual malice,” said Calvert, emeritus professor of law at the University of Florida.
He noted that actual malice is the standard by which a public-figure plaintiff must prove its case.
“In short, denying such allegations is not unusual at the initial pleading stage and Herring is simply denying a basic element or ingredient to a defamation lawsuit that Dominion must prove to win,” he said.
Many media outlets publish a retraction as a way to lessen potential damages. OAN rejects that tactic. (In fact, the outlet’s lawyers repeatedly calls demands for retraction “meritless.”)
“In California, the timely and conspicuous publication of a retraction generally limits a defamation plaintiff to recovering only special damages — those damages, such as lost wages or income, that can be assigned a fixed monetary value,” Calvert said via email.
He said a defendant’s failure to timely reply and publish a conspicuous retraction means that a defamation plaintiff may recover not only special damages but also more intangible general damages and possibly punitive damages.
“Herring seemingly is asserting that Dominion’s retraction demand failed to legally comply with California’s requirements for an effective retraction demand,” Calvert said.
Also weighing in was Dean Nelson, director of the journalism program at Point Loma Nazarene University.
He said Herring had to suggest retraction demands had no merit if they were willing to go to trial.
“If they had posted a retraction, it might tell the jury that maybe their coverage was flawed after all,” Nelson said. “Herring could have been so much easier on itself (and saved a ton of money in legal fees) by simply doing an internal audit of their reporting, and admitting if they got some things wrong.”
Nelson added: “In libel suits as well as medical malpractice suits, a simple acknowledgement of error — maybe even an apology? — removes a lot of the hostility between parties, and sometimes legal action is dropped.”
In the case’s 531-day history, Herring has tried to get federal Judge Carl Nichols in Washington, D.C., to dismiss the suit or have it heard in Colorado. Nichols rejected each effort.
In the course of Friday’s answer, Herring lawyers admit that Bobb, now a Florida-based lawyer for Donald Trump, worked in her personal time with the legal team for the Trump campaign — but “not as an employee or agent for OAN.”
“Defendants deny that there was any overlap between Bobb’s work for the Trump campaign and her work for OAN,” the answer said. “Bobb was not involved in any press briefings or messaging for the Trump campaign — her role was strictly legal — and the Trump campaign had no input on or control over the content aired on OAN.”
OAN lawyers led by Blaine Kimrey also deny that Bobb’s work for the Trump campaign was a secret “or that it was improper in any way.” (Bobb no longer works for OAN.)
While conceding it received multiple retraction demands by February 2021, OAN denied that by February 2021 any claims of election fraud had been entirely and publicly debunked.
“Indeed, President Trump continues to make newsworthy assertions of voter fraud to this day,” the latest brief said.
OAN repeated its assertion the lawsuit was designed to chill free speech and a free press.
“Indeed, since Plaintiffs filed suit … OAN has suffered, according to the media, a ‘death blow,’ represented by its loss of carriage on major cable television providers,” OAN’s filing says.
“According to market intelligence analysts quoted by the media, OAN has lost nearly all of its linear subscribers. However, Defendants intend to vigorously defend this baseless lawsuit that attempts to chill free speech and will seek their attorneys’ fees and costs.”
OAN also suggests it is blameless because other media outlets were “similarly reporting” on the Trump “rigged election” claims.
“Given the history of problems outlined above, it is difficult to imagine how OAN’s reporting could have any meaningful impact on [Dominion’s] reputations — particularly as numerous other voices with larger platforms were saying the same things,” the answer says.
Dominion also is suing Fox News, Newsmax and several individuals. No trial date has been set. (OAN also faces a lawsuit by Smartmatic, another election technology company. But OAN settled with two Georgia election workers in May.)
“At all times,” Friday’s filing says, “OAN intended to truthfully and accurately report on the newsworthy claims of voter fraud made by the president of the United States following the election.”
Point Loma Nazarene’s Nelson observes that libel suits are hard to win, “and that’s the way it should be in order to avoid frivolous complaints and keep the free flow of ideas in the public arena.”
But if Dominion can show that Herring showed reckless disregard for the truth, and that it damaged Dominion, “then they have a chance,” he said.
“This is a case that illustrates an important aspect of the role of the news media in a free society,” Nelson said via email. “It’s not against the law to get some facts wrong. It is against the law to show negligence and to recklessly disregard the truth when the outcome of the behavior does damage.”
Updated at 1:30 p.m. Jan. 24, 2023