Unless the two parties reach a last-minute settlement — which seems unlikely — Fox News and Dominion Voting Systems are scheduled for their first day in court Monday. Delaware Superior Court Judge Eric Davis is expected to finish the jury selection process in Dominion's $1.6 billion defamation lawsuit against Fox News before hearing opening statements later in the day.
Offering a blizzard of damning evidence in the form of emails, texts and phone calls exchanged among high-profile Fox News figures, Dominion has accused the long-dominant conservative infotainment channel of knowingly perpetuating false claims that the 2020 election was stolen — and, more importantly, that Dominion somehow aided this effort through the nefarious use of its technology. Dominion said these false claims have cost the company major contracts with state legislatures who were persuaded not to purchase or use its voting machines.
What are the competing arguments?
Dominion's case is straightforward: Fox "manufactured a storyline about election fraud" in which Dominion was made the "villain."
Dominion laid out its claims in a 141-page complaint, which argues that Fox News hosts not only knowingly promoted and endorsed false claims that the election was stolen in 2020 but also selected high-profile guests who the network knew would parrot that claim, giving them near-boundless airtime for outrageous allegations that Dominion had rigged the election by manipulating vote counts.
Furthermore, Fox insiders knew or at least suspected that these claims were untrue, according to the lawsuit: "Fox witness after witness has admitted under oath that they have not seen evidence proving Dominion stole the 2020 Presidential Election or that they do not believe Dominion did."
"Not a single Fox witness has presented evidence that Dominion rigged the 2020 election because no evidence, documentary or otherwise, suggests it."
Fox News, on the other hand, has repeatedly claimed that it was doing journalism. The network's position is that even though some anchors and guests promoted false claims of election fraud, which many people at Fox News understood to be baseless, the company did its ethical due diligence by giving airtime to Dominion spokesman Michael Steel, who disputed the claims.
"Fox News Media is proud of our 2020 election coverage, which stands in the highest tradition of American journalism, and will vigorously defend against this baseless lawsuit in court," the company said in a statement.
When Dominion's filing dropped in February, Fox News hit back with a longer and broader statement, which it has persistently requested that journalists include in any and all coverage of the Dominion suit. Editors at Salon, for example, have received such requests on numerous occasions.
"There will be a lot of noise and confusion generated by Dominion and their opportunistic private equity owners, but the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times v. Sullivan," the company said.
Fox Corporation chair Rupert Murdoch — who is likely to appear as a witness, as is Fox News CEO Suzanne Scott — has admitted that some Fox News hosts pushed false claims, but has argued that outrageous allegations made by guest commenters were simply the free expression of opinion, and cannot be attributed to Fox News itself.
This suit has been in process since 2021, but most recently Judge Davis set Fox News' lawyers back on their heels by ruling that one of their primary defenses — that the allegations of election fraud were newsworthy because they came from then-President Donald Trump — was too weak a claim to be argued in court.
That move came after Dominion released a flurry of emails and text messages making clear that high-profile Fox News anchors and top executives knew the guests they hosted had no evidence of election fraud and that many people inside Fox News believed the network had gone too far.
Notably, when Davis greenlit the case to proceed to trial, he also ruled that Fox News' claims of election interference by Dominion were to be treated as totally false by jurors. This could protect the jury pool from having to give any weight to the validity of groundless conspiracy theories. He also allowed lawyers to ask potential jurors whether they were Fox News viewers, although not how they voted.
The most dramatic setback for Fox News leading into Monday was the penalty they received from Davis, who ruled that Fox lawyers had withheld evidence and slapped the company with a fine.
https://twitter.com/TristanSnell/status/1646271643801604104
What about the texts and emails?
A flood of emails, texts and deposition statements regarding the Big Lie promoted by Trump and his allies — exchanged between Fox News hosts and high-ranking executives — were revealed in early March as part of Dominion's suit. Fox News hosts repeatedly admitted in those contexts that they knew the claims of 2020 election fraud were false, but said they would push them out to viewers anyway, even as they mocked their right wing sources in private.
Tucker Carlson, for instance, was revealed to be a prolific texter and a privately ferocious critic of Trump. Speaking to members of Fox staff about Trump in January 2021, he wrote, "We are very, very close to being able to ignore Trump most nights. I truly can't wait. … I hate him passionately."
In the aftermath of the Jan. 6 attacks on the Capitol, he had even spicier words for Trump in a text conversation: "He's a demonic force, a destroyer. But he's not going to destroy us. I've been thinking about this every day for four years."
Carlson described right-wing attorney Sidney Powell as "insane" and a "nut" for her false and "dangerous as hell" claims against Dominion in a litany of angry insults. "Hope she's punished," he said.
As for Rupert Murdoch, he described the Jan. 6 Capitol attack as "a wake-up call for [Sean] Hannity, who has been privately disgusted by Trump for weeks, but was scared to lose viewers."
After the Jan. 6 attack, Tucker Carlson had heated words for Donald Trump: "He's a demonic force, a destroyer. But he's not going to destroy us. I've been thinking about this every day for four years."
"Maybe Sean and Laura [Ingraham] went too far," Murdoch wrote in an email to Scott following Joe Biden's inauguration, referring to the network's post-election coverage. Murdoch then wondered whether it was "unarguable that high profile Fox voices fed the story that the election was stolen and that January 6th was an important chance to have the result overturned."
On whether he could have forced Fox News to stop hosting election deniers, Murdoch made an apparently damaging admission: "I could have. But I didn't."
But the texts and emails weren't the only evidence drops.
"Alex Wagner just broadcast audio of a Trump campaign official acknowledging during a phone call with a Fox News producer in December 2020 that there was no evidence of physical issues with Dominion voting machines," journalist Aaron Rupar tweeted.
https://twitter.com/atrupar/status/1646321015276937216
What comes next?
Opening statements in the trial should come on Monday afternoon, once jury selection is complete. No, the trial won't be televised. But reporters for major networks will be allowed to relay events in old-school fashion.
Davis said if Dominion filed the appropriate subpoenas, he would compel Murdoch and other Fox officials to take the stand. Among the big names expected to appear are Carlson, Hannity, Jeanine Pirro, Bret Baier, Dana Perino, former Fox host Lou Dobbs (perhaps the most unrepentant super-spreader of false election claims) and Murdoch himself.
Despite rampant speculation from legal observers and self-appointed media experts, the outcome of this case is impossible to predict. Defamation cases are notoriously difficult, requiring proof that false statements were made with "actual malice," that is, either knowingly and willingly or with reckless incompetence. Fox has shelled out millions in settlements through the years, as recently noted by The Hill. It remains possible that the network may seek a last-minute settlement, if only to keep Murdoch and its celebrity hosts off the stand.
The filings and evidence already made public against Fox, along with the judge's pre-trial sanctioning of Fox attorneys, have convinced many legal experts that Dominion's case is unusually strong. As a not-insignificant side note, Fox News is also fighting a $2.7 billion suit by Smartmatic, a different voting technology company that was targeted with similar claims of 2020 election fraud.
In the courtroom, the bar Dominion must clear is high. But all those mocking remarks captured in the text and email evidence have led some observers to wonder whether Fox News can prove it didn't act with actual malice.
"Davis is not an intemperate judge, but he was really steamed at Fox today. The biggest points 1) he intends to appoint a special master to see if Fox intentionally failed to disclose evidence and 2) could instruct jury that Fox inappropriately blocked Dominion from getting (evidence)," writes Larry Hitman of the Los Angeles Times.
https://twitter.com/harrylitman/status/1646326416282120192
Is press freedom really the issue?
Although it's a case that could shape legal history, Dominion v. Fox News is ultimately a defamation case that's limited in scope. It's not about the limits of press freedom or the First Amendment. It's about one company claiming that another company's defamatory actions caused it to lose business, not about "fighting words" or incitement to violence.
This case may, however, offer the courts a chance to raise the threshold of what cable shows can get away with calling "news," by resurrecting via case law the ghost of the "fairness doctrine," once a core ethical tenet of news journalism, which Rupert Murdoch helped bury.
Dominion v. Fox News may offer the courts a chance to remake the "fairness doctrine," or at least raise the threshold of what cable outlets can get away with calling "news."
Dominion's damage claims are premised on Fox "knowingly" perpetuating false allegations about election fraud, which led not just to Dominion's lost government contracts but the Jan. 6 Capitol attack. In that sense, the core principles hint at the benefits of regulated public speech (e.g., it's illegal to shout "Fire!" in a crowded theater) and could open up news conglomerates like Fox to future legal scrutiny through that lens.
Loopholes in U.S. press law have also made legitimate defamation and libel suits exceptionally difficult to win, forcing prosecutors to prove the accused's "state of mind" rather than a breach of policy. Fox's own legal crusades have a history of widening the courts' definition of "truth" and "news," and one such loophole lies at the heart of the Dominion case.
There's no "right of reply" under U.S. law, at least not since the FCC under Ronald Reagan repealed the last shreds of the fairness doctrine in 1987. That effectively rolled out the welcome mat for the explosion of right-wing talk radio, and spurred Murdoch to bring around-the-clock GOP talking points to cable news in 1997.
There are right of reply laws in the U.K., for example, where the BBC's internal policy is seen as the industry. The EU inherited a right-of-reply standard first codified in 1974, the UN enacted its own version in 1962 and France has had such a law on the books since 1881. The core principle at work here — audi alteram partem ("listen to the other side") — is found in legal systems and philosophical traditions around the world, stretching back to the ancient Greeks.
Instead of any version of that right, the U.S. has a messy body of press law that leans heavily on an obligation to distinguish "news" from "opinion" content and to correct inaccurate statements. In short, "news" in the U.S. is understood to involve reported facts, including the factual reporting of blatantly untrue statements made by "newsworthy" figures (such as the president). There is no legal requirement that a journalist must push back or offer corrections to such false statements (even if, by most applicable ethical standards, they should).
In most journalistic ethical codes and some countries' laws, the right of reply includes the right to accusations made by an interviewee, such as a guest commenter on a Fox News program. No such clear standard exists in this country.
That's the legal shield Murdoch and Fox News have historically employed. The network has frequently presented controversial opinions or false claims as "news" by allowing prime-time guests to spout whatever egregious nonsense they wish, without Fox News hosts explicitly endorsing them, and then airing pro-forma rebuttals during undesirable late-night or weekend time slots.
Judge Davis specifically shot down that argument during pre-trial discussions. "It's a publication issue, not a who-said-it issue," he said. "You can't absolve yourself of defamation by merely putting somebody on at another time to say something different."
The only semblance of the right of reply found in American journalism typically looks like this: "The central person named in this story did not immediately reply to this reporter's request for comment."
If you see a version of that line in a reported news article, it ought to mean that either the outlet or author has done the minimal due diligence required by professional standards. It's probably true most of the time, but there are rarely serious consequences if it isn't.
If Fox News wins this case, it will no doubt be emboldened to repeat its borderline-reckless behavior. If Dominion wins, we need not expect some scary rollback of First Amendment rights. There's at least a chance that this case could begin a revival of the once-treasured fairness doctrine, on the principle that a "news" badge only protects those who wear it honestly.
