Starting Monday in a courtroom in Delaware, Fox News executives and stars will have to answer for their role in spreading doubt about the 2020 presidential election and creating the gaping wound that remains in America’s democracy.
Jurors hearing the $1.6 billion lawsuit filed against Fox by Dominion Voting Systems must answer a specific question: Did Fox defame the voting machine company by airing bogus stories alleging that the election was rigged against then-president Donald Trump, even as many at the network privately doubted the false claims being pushed by Trump and his allies?
Yet the broader context looms large. The trial will test press freedom and the reputation of conservatives’ favorite news source. It will also illuminate the flow of misinformation that helped spark the Jan. 6, 2021, insurrection at the U.S. Capitol and continues to fuel Trump’s hopes to regain power in 2024.
Fox News stars Tucker Carlson and Sean Hannity and founder Rupert Murdoch are among the people expected to testify over the next few weeks.
Barring a last-minute settlement, opening statements are scheduled for Monday.
“This is 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 taking the field on a losing streak, with key players injured and having just alienated the referee. Pretrial court rulings and embarrassing revelations about its biggest names have Fox on its heels.
Court papers released over the past two months show Fox executives, producers and personalities privately disbelieved Trump’s claims of a fraudulent election. But Dominion says Fox News was afraid of alienating its audience with the truth, particularly after many viewers were angered by the network’s decision to declare Democrat Joe Biden the winner in Arizona on election night in November 2020.
Some rulings by the presiding judge, Eric Davis, have eased Dominion’s path. In a summary judgment, Davis said it was “CRYSTAL clear” that fraud allegations against the company were false. That means trial time won’t have to be spent disproving them at a time when millions of Republicans continue to doubt the 2020 results.
Davis said it also is clear that Dominion’s reputation was damaged, but it will be up a jury to decide whether Fox acted with “actual malice” — the legal standard — and, if so, what that’s worth financially.
Fox witnesses will likely testify that they thought the allegations against Dominion were newsworthy, but Davis made it clear that’s not a defense against defamation — and he will make sure the jury knows that.
New York law protects news outlets from defamation for expressions of opinion. But Davis methodically went through 20 different times on Fox when allegations against Dominion were discussed, ruling that all of them were fully or partly considered statements of fact, and fair game for a potential libel finding.
“A lawsuit is a little bit like hitting a home run,” said Cary Coglianese, law professor at the University of Pennsylvania. “You have to go through all of the bases to get there.” The judge’s rulings “basically give Dominion a spot at third base, and all they have to do is come home to win it.”
Both Fox and Dominion are incorporated in Delaware, though Fox News is headquartered in New York and Dominion is based in Denver.
Fox angered Davis this past week when the judge said the network’s lawyers delayed producing evidence and were not forthcoming in revealing Murdoch’s role at Fox News.
It’s not clear whether that will affect the trial. But it’s generally not wise to have a judge wonder at the outset of a trial whether your side is telling the truth, particularly when truth is the central point of the case, Jones said.
The suit essentially comes down to whether Dominion can prove Fox acted with actual malice by putting something on the air knowing that it knew was false or acting with a “reckless disregard” for whether it was true.
Dominion can point to many examples where Fox figures didn’t believe the charges being made by Trump allies such as Sidney Powell and Rudolph Giuliani. But Fox says many of those disbelievers were not in a position to decide when to air those allegations.
“We think it’s essential for them to connect those dots,” Fox lawyer Erin Murphy said.
The jury will determine whether a powerful figure like Murdoch — who testified in a deposition that he didn’t believe the election-fraud charges — had the influence to keep the accusations off the air.
“Credibility is always important in any trial in any case. But it’s going to be really important in this case,” said Jane Kirtley, director of the Silha Center for the Study of Media Ethics and the Law at the University of Minnesota.
Kirtley is concerned that the suit may eventually advance to the U.S. Supreme Court, which could use it as a pretext to weaken the actual malice standard that was set in a 1964 decision in New York Times Co. v. Sullivan. That, she feels, would be disastrous for journalists.
Dominion’s lawsuit is being closely watched by another voting-technology company with a separate but similar case against Fox News. Florida-based Smartmatic has looked to some rulings and evidence in the Dominion case to try to enhance its own $2.7 billion defamation lawsuit in New York. The Smartmatic case isn’t yet ready for trial but has survived Fox News’ effort to get it tossed out.
Many experts are surprised Fox and Dominion have not reached an out-of-court settlement, though they can at any time. There’s presumably a wide financial gulf. In court papers, Fox contends the $1.6 billion damages claim is a wild overestimate.
Dominion’s motivation may also be to inflict maximum embarrassment on Fox with the peek into the network’s internal communications following the election. Text messages from January 2021 revealed Carlson telling a friend that he passionately hated Trump and couldn’t wait to move on.
Dominion may also seek an apology.
How Fox viewers are reacting is an open question. Fox has placed a near-total ban on discussing the lawsuit on its TV network or website, although the network’s media reporter, Howard Kurtz, talked about the case on his show Sunday.
“The real potential danger is 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 an MSNBC contributor.
There’s little indication that the case has changed Fox’s editorial direction or cut into its viewership. Fox has embraced Trump once again in recent weeks following the former president’s indictment by a Manhattan grand jury, and Carlson presented an alternate history of Capitol riot, based on tapes given to him by House Speaker Kevin McCarthy, R-Calif.
Just because Fox hasn’t discussed the Dominion lawsuit on the air doesn’t mean its fans are unaware of it, said Tim Graham, director of media analysis at the conservative watchdog Media Research Center.
“There’s a certain amount of tribal reaction to this,” Graham said. “When all of the other networks are thrilling to revealing text messages and emails, they see this as the latest attempt by the liberal media to undermine Fox News. There’s going to be a rally-around-Rupert effect.”
The trial is expected to last into late May.
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