NEW YORK (AP) — The Delaware judge overseeing a voting machine company’s $1.6 billion defamation suit against Fox News announced Sunday that he has delayed the start of the trial until Tuesday. He did not give a reason.
The trial, which attracted international attention, was scheduled to begin Monday morning with jury selection and opening statements.
The case centers on Fox defaming Dominion Voting Systems by spreading false claims that the company rigged the 2020 presidential election to prevent former President Donald Trump from being re-elected. Tapes produced as part of the trial show that many of the network’s hosts and executives did not believe the allegations but aired them anyway.
THIS IS A HATE NEWS UPDATE. AP’s backstory follows below.
Starting Monday in a Delaware courtroom, 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 American democracy.
Jurors hearing Dominion Voting Systems’ $1.6 billion lawsuit against Fox must answer one specific question: Fox defamed the voting machine company by publishing false stories that the election was rigged against “then-President Donald Trump Trump, even so many network members in private? Have you doubted the false claims made by Trump and his allies?
However, the larger context looms large. The trial will test freedom of the press and the reputation of the conservatives’ preferred news source. It will also shed light on the flow of disinformation that helped spark the January 6, 2021 riot at the US Capitol and continues to fuel Trump’s hopes of regaining power in 2024.
Fox News stars Tucker Carlson and Sean Hannity and founder Rupert Murdoch are among those expected to testify in the coming weeks.
Barring a last-minute deal, opening statements are scheduled for Monday.
“This is Christmas Eve for defamation scholars,” said RonNell Andersen Jones, a law professor at the University of Utah.
If the Test had been a sporting event, Fox News would have gone on a losing streak with key players injured and simply alienated the umpire. Preliminary court rulings and embarrassing revelations about its biggest names have Fox on its heels.
Court documents released over the past two months show that Fox executives, producers and private individuals did not believe Trump’s claims of a fraudulent election. But Dominion says Fox News was afraid of alienating its audience with the truth, especially after many viewers were upset by the network’s decision to declare Democrat Joe Biden the winner in Arizona on election night in November 2020.
Some decisions by Chief Justice Eric Davis paved the way for Dominion. In a summary judgment, Davis said it was “CRYSTALL CLEAR” that the fraud allegations against the company were false. That means the process won’t have to be spent trying to reject them at a time when millions of Republicans continue to question the results of 2020.
Davis said it’s also clear that Dominion’s reputation has been damaged, but it will be up to a jury to decide whether Fox acted with “actual malice” — the legal standard — and, if so, how much it’s worth financially.
Fox’s witnesses will likely testify that they thought the allegations against Dominion were newsworthy, but Davis made it clear that’s not a defense to defamation — and he’ll make sure the jury knows that.
New York law protects news outlets from defamation for expression of opinion. But Davis methodically went through 20 different times on Fox when the allegations against Dominion were discussed, ruling that all were considered in whole or in part statements of fact and fair game for a potential defamation finding.
“A lawsuit is a little bit like hitting a home run,” said Cary Coglianese, a law professor at the University of Pennsylvania. “You have to go through all the bases to get there.” Judge’s rulings “give Dominion a spot at third base, and all they have to do is walk home to win it.”
Both Fox and Dominion are incorporated in Delaware, although Fox News is based in New York and Dominion is based in Denver.
Fox angered Davis last week when the judge said the network’s lawyers delayed producing evidence and would not disclose Murdoch’s role to Fox News. Fox attorney Blake Rohrbacher sent a letter of apology to Davis on Friday, saying it was a misunderstanding and not an intent to deceive.
It’s unclear whether that will affect the process. But it’s generally unwise for a judge to ask early in a trial whether your side is telling the truth, especially when the truth is critical to the case, Jones said.
The lawsuit essentially boils down to whether Dominion can prove that Fox acted with actual malice in broadcasting something it knew to be false, or by acting with “reckless disregard” for it to be true. In most defamation cases, this is the most difficult hurdle for plaintiffs to overcome.
Dominion can point to many examples where Fox figures did not believe allegations made by Trump allies like Sidney Powell and Rudolph Giuliani. But Fox says many of these nonbelievers were in no position to decide when to air these allegations.
“We think it’s critical for them to connect those dots,” Fox attorney Erin Murphy said.
The jury will determine whether a powerful figure like Murdoch – who testified in a deposition that he did not believe the allegations of election fraud – had the influence to dismiss the allegations.
“Credibility is always important in any process, 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 lawsuit could eventually reach the U.S. Supreme Court, which could use it as a pretext to undermine the current malice standard established in a 1964 New York Times Co. decision. v. Sullivan. This, according to her, would be disastrous for journalists.
The Dominion lawsuit is closely followed by another voting technology company with a separate but similar case against Fox News. Florida-based Smartmatic has reviewed some rulings and evidence in the Dominion case to try to improve its $2.7 billion defamation suit in New York. The Smartmatic case isn’t ready for trial, but it survived Fox News’ effort to throw it out.
Many pundits are surprised Fox and Dominion didn’t settle out of court, even though they always do. There is probably a big financial gap. In court filings, Fox says the $1.6 billion claim is an exaggeration.
Dominion’s motivation may also be to embarrass Fox the most by looking into the network’s internal communications after the election. Text messages from January 2021 revealed that Carlson told a female friend that she hated Trump with a passion and couldn’t wait to move on.
Dominion can also apologize.
The lawsuit had no apparent effect on the Fox News audience; remains the best cable network. Fox reporter Howard Kurtz said earlier this year that he was barred from covering the trial, but the network has since changed tack. Kurtz discussed the case on his show Sunday, saying he will be in Wilmington for the start of the trial.
“The real potential danger is if Fox viewers feel they’ve been lied to. There is a real downside here,” said Charlie Sykes, founder of the website Bulwark and MSNBC contributor.
There is little indication that the case has changed Fox’s editorial direction or reduced its audience. Fox has embraced Trump again in recent weeks after the former president was indicted by a Manhattan grand jury, and Carlson presented an alternate history of the Capitol riot based on tapes given to him by House Speaker Kevin McCarthy, R Caliph.
Just because there has been limited discussion of Fox Dominion’s lawsuit doesn’t mean its fans aren’t aware of it, said Tim Graham, director of media analysis at the conservative Media Research Center.
“There’s a certain tribal reaction to it,” Graham said. “When all the other networks are happy to release text messages and emails, they see it as the latest attempt by the liberal media to undermine Fox News. There will be a rallying effect around Rupert.
The trial is expected to last until the end of May.
Associated Press writer Jennifer Peltz contributed to this report.
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