NEW YORK (AP) — The Delaware judge overseeing a $1.6 billion voting machine company defamation lawsuit against Fox News announced late Sunday that he was delaying the start of the trial until Tuesday. He did not mention the reason.
The trial, which has attracted international interest, is scheduled to begin Monday morning with jury selection and opening statements.
According to the Wall Street Journal, a person familiar with the situation said on Sunday that the conservative network had made a final push to settle the dispute in court.
The case centers on whether Fox undermined the Dominion Voting System by airing false claims that the company rigged the 2020 presidential election to prevent former President Donald Trump’s re-election. Records produced as part of the lawsuit show that many of the network’s hosts and executives did not believe the allegations but aired them.
THIS IS A NEWS UPDATE. Previous AP story below.
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, even though many were on a private network. doubt the false claims made 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 and 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 Eve for defamation scholars,” said RonNell Andersen Jones, a University of Utah law professor.
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 of alienating its audience with the truth, especially after many viewers were outraged by the network’s decision to declare Democrat Joe Biden the winner of Arizona on election night in November 2020.
Several rulings by the presiding judge, Eric Davis, have 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.
“Lawsuits are like following a house,” said Cary Coglianese, a law professor at the University of Pennsylvania. “You have to go through the whole base to get in.” The judge’s ruling “basically gave Dominion a spot on third base, and all they had to do was come home to win.”
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. A Fox lawyer, Blake Rohrbacher, sent a letter of apology to Davis on Friday, saying it was a misunderstanding and he did not intend to lie.
It’s unclear how that will affect the trial. But it’s generally unwise for a judge to wonder at the start of a trial whether your side is telling the truth, especially if the truth is a central point of the case, Jones said.
The suit means that Dominion can prove that Fox acted in bad faith by asserting that it knew it was wrong or acted with “reckless disregard” for what was right. In many libel cases, this is the most difficult hurdle for plaintiffs to overcome.
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. 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.
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 Carlson told a friend that he hated Trump so much and couldn’t wait to see him.
Dominion can also apologize.
The trial had no apparent impact on Fox News audiences; it remains a top-rated cable network. Fox media reporter Howard Kurtz said earlier this year that he was barred from covering the lawsuit, but the network has since changed course. Kurtz discussed the case on Sunday’s show, saying he will be in Wilmington for the start of the trial.
“The real potential danger is that Fox viewers realize they’ve been lied to. There’s a real downside,” 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 recent weeks after the former president’s indictment by a Manhattan grand jury, and Carlson presented an alternate history of the Capitol riots, based on tapes given to him by House Speaker Kevin McCarthy, R-Calif.
Just because there’s been limited discussion of the Dominion suit on Fox doesn’t mean fans aren’t aware of it, said Tim Graham, director of media analysis at the conservative Media Research Center.
“There’s been some tribal reaction to this,” Graham said. “While all the other networks are happy to publicize the text messages and emails, they see this as the latest attempt by the liberal media to destroy Fox News. There will be a rally-around-Rupert effect.
The trial will run until the end of May.
Associated Press writer Jennifer Peltz and HuffPost reporter Josie Harvey contributed to this report.