NEW YORK — The Delaware judge overseeing a voting machine company’s $1.6 billion defamation lawsuit against Fox News announced late Sunday that he was delaying the start of the trial until Tuesday. He did not cite a reason.
The trial, which has drawn international interest, had been scheduled to start Monday morning with jury selection and opening statements.
The case centers on whether Fox defamed Dominion Voting Systems by spreading false claims that the company rigged the 2020 presidential election to prevent former President Donald Trump’s reelection. Records produced as part of the lawsuit show that many of the network’s hosts and executives didn’t believe the allegations but aired them, anyway.
Starting Tuesday 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.
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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 were scheduled for Tuesday.
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. A Fox lawyer, Blake Rohrbacher, sent a letter of apology to Davis on Friday, saying it was a misunderstanding and not an intention to deceive.
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. In most libel cases, that is the most difficult hurdle for plaintiffs to get past.
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.
