Taking on Fox

The most consequential litigation of Thomas Clare’s career began with a phone call on a quiet Thanksgiving weekend at his Alexandria home in 2020.

Things didn’t stay quiet for long.

“It was Dominion Voting Systems,” Clare recalls. “They were requesting that our firm join their litigation against Fox News and other media companies which had been spreading false stories about the integrity of Dominion’s voting machines. I was thrilled to get the call and very honored that Dominion thought we could add some value.”

Clare was no stranger to high-profile, high-stakes defamation litigation. His firm has successfully sued Rolling Stone magazine and obtained a jury verdict in a libel case against Puma Biotechnology, plus he previously achieved a $10 million settlement and front-page apology from the Cincinnati Enquirer when he was at Kirkland & Ellis.

But this case felt different. “Part of the reason we felt such a moral imperative to bring the cases was to make sure the folks at Dominion were being treated fairly under the law. But beyond that, there was an enormous amount of harm done to our country by the dissemination of these falsehoods on cable TV, and it created a great deal of concern with, and distrust of, our electoral system.”

Clare’s aptitude for law became apparent early in childhood. When his parents ”sentenced” him and his younger brother to writing 500 sentences for some minor vandalism around the house, Clare felt that the punishment didn’t fit the crime and pleaded his case. His dad finally conceded he had made some strong points and withdrew the punishment. “But not before my brother had written 496 times,” he adds with a laugh. “That’s a classic story in our house, and it’s how they knew I was on track to be a lawyer.”

Through the winter of 2020-’21, attorneys at Clare Locke, along with co-counsel Susman Godfrey and Dominion’s own legal team, worked to debunk continuing misrepresentations.

Clare felt some of the claims being made on cable and/or social media were outrageous. For instance, he says, “a truly implausible allegation that Dominion was shipping the votes to Europe and shipping them back again, and an affidavit that was floating around that supposedly provided support for this notion that Dominion voting machines had been created for Hugo Chavez to be able to rig elections in Venezuela.”

Clare explains the initial strategy—“to literally flood the field with the true facts that demonstrated the falsity of the big lie that Dominion had rigged the election,” he says. “Our initial mandate was nothing to do with litigation—it wasn’t to try to set up a good legal claim, or to win a crazy dollar amount. It was how do we save the company from these defamatory falsehoods—whatever we could do to stop these outlets from broadcasting them.”

One of the legal elements of defamation is to be able to demonstrate that “the speaker spoke the defamatory falsehoods with reckless disregard of the truth,” Clare says. The initial hope that media outlets would stop broadcasting falsehoods about Dominion proved short-lived. “So we had to move to a different phase of the engagement where we started looking at litigation more seriously,” Clare says.

The repercussions got personal. “One of the most gut-wrenching things about the case was that people who saw and believed these falsehoods felt like these Dominion workers had stolen their rights,” Clare says. “This put Dominion’s people in a real sense of physical harm.” He says they were receiving death threats, and at one point a sniper showed up outside of Dominion’s offices. “The men and women of Dominion certainly knew that they had not done any of these things, but that’s a very difficult thing to carry around, when you can’t go safely to church or to the store.”

On the brink of trial, Fox agreed to settle for $787 million in damages and fees. What Dominion was after, Clare says, was “a very clear exposition that our democracy isn’t tainted, isn’t corrupt, and that there is a meaningful, trustworthy method of counting votes using the Dominion machines. And we got that.”

Dominion has ongoing suits against two other cable media outlets—OAN Network and Newsmax—and several media personalities, and Clare is involved in all of them.

Why It Matters

Clare reflects on the impact of the Fox case and the importance of defamation law. “It sends a signal to other people who would either say or spread defamatory falsehoods that there are very serious consequences when you do that,” he says. “And it sends a very strong signal that you have to take seriously economic consequences: There are consequences for doing this. And it should be a wakeup call for other media outlets to be much more careful about what they put forward.”

“Democracy only works if the press is representing the truth accurately. False representation makes the whole thing break down.”