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Starting Monday in a courtroom in Delaware, Fox News executives and stars must answer for their role in spreading doubt about the 2020 presidential election and creating a gaping wound that remains in American democracy.
The jury hearing the $1.6 billion lawsuit filed against Fox by Dominion Voting Systems must answer a specific question: Did Fox harm the voting machine company by spreading a false story claiming that the election was rigged against president Donald Trump, despite many on the network. personally doubt the bogus claims pushed by Trump and his allies?
But the broader context looms large. The trial will test the freedom of the press and the reputation of conservatives’ favorite news sources. It will also shed light on the flow of misinformation that helped fuel the January 6, 2021 uprising at the US Capitol and continues to boost Trump’s hopes of regaining power in 2024.
Fox News stars Tucker Carlson and Sean Hannity, along with founder Rupert Murdoch, are among those who will testify over the next few weeks.
If no final settlement is reached, opening statements are scheduled for Monday.
“It’s Christmas Day for defamation scholars,” said RonNell Andersen Jones, a University of Utah law professor.
Some Fox staffers privately do not believe Trump’s claims
If the trial were a sporting event, Fox News would be out on the field, with key players injured and only the umpire sidelined. The verdict of the court before the court and the embarrassing revelation about the biggest name has Fox.
Court papers released over the past two months show Fox executives, producers and personalities privately do not believe Trump’s claims of a fraudulent election. But Dominion said Fox News is afraid to alienate viewers from the truth — especially after many viewers were outraged by the network’s decision to declare Democrat Joe Biden the winner in Arizona on election night in November 2020.
Several rulings by Delaware Superior Court Judge Eric Davis, who heard the case, eased Dominion’s path. In the summary judgment, Davis said it is “CRYSTAL clear” that the fraud allegations against the company are false. That means the trial period should not be used to argue while millions of Republicans continue to doubt the 2020 outcome.
Davis said it is also clear that Dominion’s reputation is damaged, but it will be up to the jury to decide whether Fox acted with “actual malice” – the legal standard – and, if so, whether it is worth financially.
Fox’s witness will likely testify that they thought the allegations against Dominion were newsworthy, but Davis made it clear that he did not defend against defamation – and he will make sure the jury knows.
New York law protects news outlets from defamation for the expression of opinion. But Davis methodically went through 20 different times on Fox when the allegations against Dominion were discussed, ruled that they were all full or partially considered statements of fact, and fair game to find potential libels.
Did Fox intentionally spread false claims?
“Lawsuits are like following a house,” said Cary Coglianese, a law professor at the University of Pennsylvania. “You have to go through all the bases to get there.”
The judge’s decision “basically gave Dominion a spot on third base, and all they had to do was come home to win,” he said.
Both Fox and Dominion are incorporated in Delaware, although Fox News is headquartered in New York and Dominion is based in Denver.
Fox angered Davis last week when a judge said the network’s lawyers were late producing evidence and would not come forward in revealing Murdoch’s role in Fox News.
It’s unclear how that will affect the trial. But it’s generally unwise for judges to wonder at the start of a trial whether your side is telling the truth, especially if the truth is central to the case, says University of Utah Jones.
The suit means that Dominion can prove that Fox acted in bad faith by asserting that it knew it was false or acted with “reckless disregard” for the truth.
Dominion can point to many examples where Fox figures do not believe accusations made by Trump allies such as Sidney Powell and Rudolph Giuliani. But Fox said many disbelievers can’t decide when to file the charges.
“We think it’s important to connect the dots,” said Fox attorney Erin Murphy.
A jury will determine whether a powerful figure like Murdoch — who testified in a deposition that he did not believe allegations of election fraud — had the influence to keep the allegations alive.
“Credibility is always important in any trial in any case. But it will be especially important in this case,” said Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota.
Kirtley worries that the lawsuit could eventually go to the US Supreme Court, which could be used as a pretext to undermine the actual crime standard established in the 1964 decision in New York Times Co. v. Sullivan. That, he felt, would be dangerous for journalists.
Day 68:38 a.mDominion’s election lawsuit could be the ‘civil lawsuit of the century,’ a Washington Post media critic said
In the background of the January 6 Committee hearing, the $1.6 billion defamation suit against Fox News became a big issue. Dominion Voting Systems is suing Fox for pushing false claims about election fraud that make Dominion the villain. This week, former attorney general William Barr was subpoenaed by the court — a sign that there is a “very serious direction,” according to Erik Wemple, a columnist and media critic for The Washington Post.
Dominion’s lawsuit is closely watched by other voting technology companies in a separate but similar case to Fox News. Florida-based Smartmatic has appeared for several decisions and evidence in the Dominion case to try to increase its own $2.7 billion defamation lawsuit in New York. The Smartmatic case is not yet ready for trial but has survived Fox News’ efforts to have it thrown out.
Many experts are surprised that Fox and Dominion have not reached a settlement out of court, although they could at any time. There must be a wide financial gap. In court papers, Fox asserted the $1.6 billion damages claim was a wild overestimate.
Dominion’s motivation could also be to embarrass Fox by looking at the network’s internal communications after the election. A text message from January 2021 revealed Tucker Carlson told a friend that he hated Trump so much and couldn’t wait to see him.
Dominion can also apologize
How Fox viewers will react is an open question. Fox has placed a near-total ban on discussing the lawsuit on network TV or its website.
“The potential danger is real if Fox viewers get the sense that they’ve been lied to. There’s a real downside there,” said Charlie Sykes, founder of the Bulwark website and MSNBC contributor.
There is no indication that the case has changed Fox’s editorial direction or reduced viewership. Fox has embraced Trump once again in the weeks following the indictment of the former president by a Manhattan grand jury, and Carlson presented an alternate history of the Capitol riots, based on tapes given to him by US House Speaker Kevin McCarthy.
Just because Fox hasn’t discussed Dominion’s lawsuit on air doesn’t mean fans aren’t aware of it, said Tim Graham, director of media analysis at the conservative Center for Media Research.
“There’s been some tribal reaction to this,” Graham said. “While all the other networks are happy to reveal their text messages and emails, they see this as the latest attempt by the liberal media to undermine Fox News. There will be a rally-around-Rupert effect.”
The trial will run until the end of May.
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