Dominion Voting Systems’ defamation suit against Fox News is generating tremendous media attention. In case you have not been following it, Dominion accuses Fox of broadcasting false statements about its voting machines that were used in the 2020 election: that they were rigged to favor Biden and were otherwise manipulated by officials in Venezuela. Fox hosts made such statements while privately acknowledging in text messages to each other that the allegations were likely untrue. Dominion seeks damages of over $1 billion.
Defamation cases are hard to win because there are so many judge-made defenses. RICO cases are also hard to win. But if the defendant is using federal wires to transmit false statements over a significant period of time and this is done through an enterprise, there could be RICO liability. Here, assuming the network were broadcasting knowingly false allegations, the first hurdle would be an enterprise. I am not aware Fox News was operating through a larger enterprise. It is possible that some sort of association-in-fact enterprise existed in conjunction with the Trump campaign’s lawyers, particularly Sidney Powell, who were pushing the false statements and offering to continue to make them on the air. Or, the network hosts, including Tucker Carlson, could be named as the defendants and the enterprise would be Fox News. But one of these configurations should satisfactorily plead a sufficient enterprise.
The larger hurdle would be showing there is a pattern of racketeering activity. A closed pattern generally requires 1-2 years of continuous commission of predicate acts. The time period here is much shorter, basically a few months following the 2020 election. So Dominion would have to allege an open and ongoing pattern of wire fraud. To do so it would have to show the fraud will likely continue into the future and is a “regular way” Fox does business. I do not know if Fox is continuing to broadcast the allegedly false allegations about Dominion. If it stopped doing so, which seems likely if it is being sued, then there would not be an open pattern. Without either an open or closed pattern, there is no RICO case.
But if Dominion could show Fox were broadcasting other false statements, even if they were about it, it could satisfy the open pattern requirement. Dominion would also have to show it was directly harmed by the false statements. It could not rely on reputational damage, which is a basis for defamation damages. So Dominion would have to show it lost business as a result of the allegedly false statements, which it apparently contends is the case.
All in all, this could be a good RICO case if brought by a lawyer who is willing to search for the necessary facts to show a pattern of fraud. I make no representation it can be found.