As of Monday in a courtroom in Delaware, Fox News executives and stars will have to answer for their role in spreading doubt about the Presidential Election 2020 and creating the gaping wound that remains within America’s Democracy.
Judges hear the $1.6 billion lawsuit filed against Fox by Dominion Voting Systems needs to answer a specific question: Did Fox defame the voting machine company by spreading false stories claiming the election was rigged against then-President Donald Trump, while many on the network privately questioned the false claims pushed by Trump and his allies ?
Yet the broader context emerges. The process will press freedom testing and the reputation of being the conservative news source of choice. It will also ease the flood of misinformation that has been at the forefront the January 6, 2021 riot at the US Capitol and keeps fueling Trump hopes to return to power in 2024.
Fox News stars Tucker Carlson And Sean Hannity and founder Rupert Murdoch are among the people expected to testify in the coming weeks.
Barring a last-minute settlement, opening statements are scheduled for Monday.
“This is Christmas Eve for libel scholars,” said RonNell Andersen Jones, a law professor at the University of Utah.
If the lawsuit were a sporting event, Fox News would take the field on a losing streak, with key players injured and just alienating the referee. Judgments of the court under preliminary investigation and embarrassing revelations about his biggest names are hot on Fox’s heels.
Court documents released over the past two months show that Fox executives, producers and personalities privately disbelieved Trump’s claims of fraudulent elections. But Dominion says Fox News was fear of alienating his audience with the truth, especially 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 from the presiding judge, Eric Davis, have eased Dominion’s path. In summary proceedings, Davis said yes “Crystal clear” that allegations of fraud against the company were false. That means no probation needs to be spent refuting it at a time when millions of Republicans continue to doubt the 2020 results.
Davis said it’s also clear Dominion’s reputation has been damaged, but it’s up to a jury to decide whether Fox acted with “actual malice” — the legal standard — and if so, what that is financially worth.
Fox witnesses will likely testify that they thought the allegations against Dominion were newsworthy, but Davis made it clear that this isn’t a defamation defense — and he’ll make sure the jury knows that.
New York law protects news outlets from defamation of speech. But Davis methodically went through 20 different times on Fox as allegations against Dominion were discussed, ruling that they were all considered all or part of them to be statements of fact, and fair game for a possible libel finding.
“A lawsuit is a 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.” 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 based in Delaware, although Fox News is headquartered in New York and Dominion is in Denver.
Fox angered Davis last week when the judge said the network lawyers delayed producing evidence and were unwilling to reveal Murdoch’s role at Fox News.
It is not clear whether that will affect the process. But it’s generally not wise to let a judge question whether your side is telling the truth at the beginning of a trial, especially when the truth is the central point of the case, Jones said.
The lawsuit essentially boils down to whether Dominion can prove that Fox acted with actual malice by putting something on the air knowing it knew it was false or by acting with a “reckless disregard” for whether it was true used to be.
Dominion can point to many examples where Fox characters disbelieved the allegations of Trump allies, such as Sidney Powell And Rudolph Giuliani. But Fox says many of those infidels were unable to decide when to make those accusations.
“We think it’s essential that they connect those dots,” said Fox attorney Erin Murphy.
The jury will determine whether a powerful figure like Murdoch – who testified in a statement that he did not believe the allegations of electoral fraud – had the clout to keep the allegations out of the blue.
“In any case, credibility is always important in any process. But in this case, it becomes very important,” said Jane Kirtley, director of the Silha Center for the Study of Media Ethics and the Law at the University of Minnesota.
Kirtley worries that the lawsuit will eventually go to the U.S. Supreme Court, which could use it as a pretext to challenge the true standard of malice established in a 1964 New York Times Co. decision. v. Sullivan, to weaken. According to her, that would be disastrous for journalists.
Dominion’s lawsuit is being closely watched by another voice technology company a separate but similar case to Fox News. Florida-based Smartmatic has looked at some of the rulings and evidence in the Dominion case to try and improve its own $2.7 billion libel lawsuit in New York. The Smartmatic case is not yet ready to go to trial, but it is survived the Fox News effort to get it out.
Many pundits are surprised that Fox and Dominion have not reached an out-of-court settlement, although they could do so at any time. There is probably a wide financial gap. In court documents, Fox claims the $1.6 billion in damages is a wild overestimate.
Dominion’s motivation may also be to embarrass Fox to the max with a peek into the network’s post-election internal communications. Text messages from January 2021 revealed that Carlson told a friend that he passionately hated Trump and couldn’t wait to move on.
Dominion can also look for excuses.
How Fox viewers react is an open question. Fox has placed a near-total ban on discussing the lawsuit on its TV network or website.
“The real potential danger is if Fox viewers feel they have been lied to. There’s a real downside,” said Charlie Sykes, founder of the Bulwark website and an MSNBC contributor.
There is little evidence that the case has changed Fox’s editorial direction or reduced viewership. Fox has hugged Trump again in recent weeks following that of the former president indictment by a grand jury in Manhattanand Carlson presented an alternate history of the Capitol riot, based on tapes passed to him Speaker of the House Kevin McCarthyR-Calif.
Just because Fox hasn’t discussed the Dominion lawsuit on the air doesn’t mean his fans don’t know about it, said Tim Graham, director of media analysis at the conservative watchdog Media Research Center.
“There’s a certain amount of tribal response to this,” Graham said. “If all the other networks are excited to reveal text messages and emails, they see this as the liberal media’s latest attempt to undermine Fox News. There will be a rally-around-Rupert effect.”
The process is expected to last until the end of May.
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Associated Press writer Jennifer Peltz contributed to this report.