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It seems the primary defense Fox News' lawyers are making in the Dominion defamation lawsuit seems to be that Fox was only sharing alleged allegations and expressing opinion, but they never explicitly said the Dominion fraud allegations were true so defamation didn't happen. However Fox has undeniable had moments when it's hosts stated opinions that implied they questioned the validity of the election, which Dominion apparently felt raised to the level of defamation to file a lawsuit.

So for now let's presume there is no smoking gun of someone on air saying that the believed Dominion undeniable engaged in fraud. How much could Fox News, or anyone else, get away with statements that might imply they believed fraud occurred without explicitly saying it, and at what point does the implication of belief alone become blatant enough to constitute defamation?

To give an example of what I mean it appears that Hannity told his audience that it was “impossible to ever know the true, fair, accurate election results”. As a result Fox's lawyer told executives that “Hannity is getting awfully close to the line with his commentary and guests tonight.” Where exactly is the line that Hannity was getting close to suppose to be, and what would be required to prove he, or anyone, had overstepped the aforementioned line?

I realize that proving defamation also requires a statement to be false, or at minimum that the speaker had a reckless disregard of the accuracy of their statement, and for the statement to be proven to have harmed the one defamed against. I think I understand all those requirements, they aren't what I'm curious about so for now let's not waste time on them. If we presume all the other requirements for defamation have already been proven how much can a theoretical speaker get away with implying belief in the false claim without explicitly saying it before it rises to the level of defamation?

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  • The last paragraph contains inaccuracies. I know you said "let's not waste time on them", but your false sense of confidence is likely to mislead the audience. Proving reckless disregard does not preclude the need to prove falsity: a person who with reckless disregard for the truth or falsity states a fact that is actually true would not be liable for defamation. In claims of defamation per se a plaintiff does not need to prove harm, since in such claims harm is presumed. Mar 4, 2023 at 15:31

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When it can be “reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference.”

Which is the standard the New York appeals court endorsed in 2014 for “defamation by implication”.

So, on the face of the statements, they have to imply fraud and they have to show that the speaker intended to imply fraud. Whether they did that is up to the jury.

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