Fox News host Sean Hannity has gone back and forth over the years on whether he is a journalist.
When asked about his close relationship with then-presidential candidate Donald Trump in 2016, Hannity told The New York Times: “I never claimed to be a journalist.” A year later, he refined his answer: “I’m a journalist. But I’m an advocacy journalist, or an opinion journalist. I want to give my audiences the best shows possible.”
Now, the ability of the network’s highest-paid star to convince a court of his journalistic pedigree could be crucial to the Rupert Murdoch-controlled Fox News’s ability to fend off a $1.6bn defamation suit over its airing of false voter fraud allegations after Trump’s loss in the 2020 election.
Hannity is one of several prominent Fox News personalities to have been deposed in the high stakes case, brought by voting machine manufacturer Dominion Voting Systems, whose devices were used across 28 states in the election.
Dominion alleges Fox News aired defamatory claims that its software and algorithms manipulated vote counts, that the company had connections to the late Venezuelan dictator Hugo Chávez, and that it bribed government officials.
But during a recent seven-hour grilling under oath, Hannity declined to answer some questions citing “reporter’s privilege”, arguing that he is trying to shield his sources, according to public court documents.
Reporters are generally considered to have some rights under the First Amendment, although the protection afforded varies by state and jurisdiction. Dominion’s lawyers claimed Hannity’s stance in this instance was an “improper assertion” of reporter’s privilege.
The dispute is at the heart of the high-profile lawsuit against America’s most influential news network, which Fox has framed as a referendum on the freedom of the press.
Lawyers and scholars say the case has broad implications for libel law and journalism in the US, as well as whether there are repercussions for spreading a falsehood that threatens democratic institutions.
“This case will unquestionably go down as among the most consequential defamation actions in the history of our country”, said RonNell Andersen Jones, a law professor at the University of Utah.
“[It] matters not just because it’s about a critically important issue of public concern, but also because they’re testing the outer boundaries of the constitutional privilege that we give to journalists . . . who comment on matters of public concern,” Andersen Jones added.
The legal challenge hangs over Fox News at the same time that the 91-year-old Murdoch, who controls Fox, is trying to merge the company with News Corp. Neither Fox nor Dominion is seeking a settlement and both intend to fight the case at trial, according to people familiar with the matter.
In a trial set for April 2023 in Delaware, Fox’s lawyers are expected to argue that then-president Trump’s allegations of widespread voter fraud were extremely newsworthy; that its hosts were merely reporting on a crucial development in the election process; that Fox aired Dominion’s response to the claims; and that the channel stopped repeating the Trump campaign’s assertions once it was clear that there was no evidence to support them.
The defence will also likely reiterate Fox News’s longstanding claim that its programming spans both news, from journalists such as Bret Baier, and opinion from the likes of Tucker Carlson and Hannity, who has a contract worth up to $40mn a year, according to Dominion’s lawsuit.
For years, critics have questioned whether some Fox News presenters are in fact journalists, arguing they are instead allies of conservative politicians and push a political agenda to massive audiences across the country. David Frum, a former speechwriter for George W Bush, in 2010 said: “Republicans originally thought that Fox worked for us, and now we are discovering we work for Fox.”
However, legal experts say Dominion faces an uphill struggle, due to strong US constitutional protections around discourse about matters of public interest. “They have to prove that Fox knew [the voter fraud allegation] was false; they have to prove actual malice,” one prominent media lawyer said.
“It isn’t enough that there is proof of a lie. It has to be a deliberate lie,” said Andersen Jones from the University of Utah. “This is the first time in a long while . . . that there has been some indication that even that very high bar may be met.”
This makes it crucial to gain access to Hannity and others, as well as their communications at the time, Dominion’s legal team says. In the past few months, they have deposed Fox stars including Carlson, Jeanine Pirro, Lou Dobbs, Maria Bartiromo and Steve Doocy, as well as Murdoch’s son James, according to court records.
During the chaos following the 2020 election, Fox News chief executive Suzanne Scott sent out a message warning “we can’t give the crazies an inch” in reference to Trump supporters, Dominion stated in a hearing last month, National Public Radio reported. A transcript of that hearing has since been sealed by the judge.
In public court filings, Fox’s lawyers say Dominion “wishes to mislead the public with cherry-picked (and mischaracterised) non-public documents long before it has to carry its burden of proof in court”.
Dominion’s original complaint alleged that Hannity allowed a guest, one-time Trump lawyer Sidney Powell, to claim on a live broadcast that the company’s voting machines “ran an algorithm that shaved votes from Trump and awarded them to Biden”.
The company claims that Hannity “did not correct Powell or notify his millions of viewers that he and his show’s producers had seen direct evidence disproving those false claims”.
However Hannity, who has worked for Fox since 1996, refused to answer certain questions regarding that episode, according to a heavily redacted motion filed by Dominion.
In a response filed to the court, Hannity said: “Individuals have requested that I keep their names and certain newsgathering information confidential, and I have agreed to those requests.”
It is unclear whether the court will force Hannity to be deposed again. Fox News said it was “confident we will prevail as freedom of the press is foundational to our democracy and must be protected, in addition to the damages claims being outrageous, unsupported, and not rooted in sound financial analysis, serving as nothing more than a flagrant attempt to deter our journalists from doing their jobs”.
Dominion declined to comment.