IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

US DOMINION, INC., DOMINION VOTING SYSTEMS, INC., and DOMINION VOTING SYSTEMS CORPORATION,

Plaintiffs,

v.

FOX NEWS NETWORK, LLC,

Defendant.

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C.A. No. N21C-03-257 EMD

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DEFENDANT'S BRIEF IN SUPPORT OF ITS RULE 12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

OF COUNSEL:

Charles L. Babcock JACKSON WALKER LLP 1401 McKinney Street, Suite 1900 Houston, TX 77010 (713) 752-4210

Blake Rohrbacher (#4750) Katharine L. Mowery (#5629) Valerie A. Caras (#6608) RICHARDS, LAYTON & FINGER, P.A. 920 North King Street Wilmington, DE 19801 (302) 651-7700

Scott A. Keller LEHOTSKY KELLER LLP 200 Massachusetts Avenue NW Washington, D.C. 20001 (512) 693-8350

Attorneys for Defendant Fox News Network, LLC

Dated: May 18, 2021

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PRELIMINARY STATEMENT A free press must be able to report both sides of a story involving claims striking at the core of our democracy--especially when those claims prompt numerous lawsuits, government investigations, and election recounts. When a sitting President of the United States and his legal team challenge a presidential election in litigation throughout the nation, the media can truthfully report and comment on those allegations under the First Amendment without fear of liability. Plaintiffs' defamation lawsuit against Fox News threatens to stifle the media's free-speech right to inform the public about newsworthy allegations of paramount public concern. Fox hosts did not create allegations against Dominion, which predate the November 2020 election. In 2019 legal claims (Ex.A1) still pending, Georgia voters alleged that Dominion's "unaccountable, unverifiable" voting system "will be a colossal train wreck for democracy," because it "produces unaccountable, inherently evidence-free election outcomes by its very design." Ex.A2. In October 2020, federal Judge Totenberg credited testimony in that case from an "array of experts and subject matter specialists [that] provided a huge volume of significant evidence regarding the security risks and deficits in the [Dominion] system." Curling v. Raffensperger, 493 F. Supp. 3d 1264, 1278 (N.D. Ga. 2020). The court warned that Dominion's technology "presents serious system security vulnerability and operational issues" caused by "fundamental deficits and exposure"--risks the court

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found "neither hypothetical nor remote." Id. at 1340-41. During a subsequent PBS interview, one of the challengers' experts "worried" that Dominion's system "is the technical equivalent" to an airplane crash. Ex.A3.

A week later, Fox called Arizona before any other network, and Fox then called the election for now-President Biden the same day as other media. That call was disputed: President Trump and his legal team quickly challenged the election results in lawsuits across the country. Instead of shying away from reporting these controversies, Fox fairly and extensively covered them just as it had reported the election results. As responsible journalists, Fox covered both sides. The American people deserved to know why President Trump refused to concede despite his apparent loss.

The news media has the right in a democracy to inform citizens by reporting and commenting on a President's allegations challenging the security of our elections. The President and his legal team filed multiple lawsuits alleging, like the 2019 Curling claims, that voting systems like Dominion's could be manipulated to alter votes. Many doubted these allegations. Others, like the Curling challengers, continue to express concerns. Fox and other media throughout the world truthfully reported the newsworthy claims by President Trump and his legal team. Fox hosts responsibly covered the controversy, repeatedly pressing the President's attorneys, Rudy Giuliani and Sidney Powell, for evidence substantiating their allegations.

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