The trial of a $1.6 billion defamation case against Fox News over its reports that a voting machine maker rigged the 2020 presidential election against Donald Trump got back underway after a one-day delay for last-ditch settlement talks.
Jury selection, which started last week, resumed Tuesday and is expected to wrap up later in the morning, followed by opening arguments and potentially a witness. Delaware Superior Court Judge Eric Davis said in court that he plans to keep the trial at six weeks.
The list of high-profile witnesses in the case, brought in March 2021 by Dominion Voting Systems Inc., is topped by News Corp. Chairman Rupert Murdoch. Dominion accuses the 92-year-old media titan of willfully ignoring the obvious falsity of the conspiracy theory his network was rapidly spreading so he could keep Trump fans from changing channels to competitors like Newsmax.
Fox texts and emails uncovered as evidence in the case show the network and its parent company, Fox Corp., feared Trump’s wrath after Fox called the swing state of Arizona for Joe Biden. Focusing on the stolen-election claim was seen as a way to mitigate the damage with Trump’s base.
“Do the executives understand how much credibility and trust we’ve lost with our audience?” Fox superstar host Tucker Carlson warned his producer in a text. “We’re playing with fire, for real ... an alternative like newsmax could be devastating to us.”
Dominion argues that Fox broadcast the claims knowing they were false or with reckless disregard for the truth, stripping the network of First Amendment protections. Fox says the case puts the free press at risk, that it was reporting newsworthy claims made by a president and that Dominion has vastly inflated the financial impact of the theory on its business.
The two could still settle the suit during the trial. Bloomberg Intelligence reckons a settlement at about half a billion dollars.
It estimates that if the trial plays out and the jury finds Fox liable, it could award Dominion damages of about $375 million. Even that fraction of the $1.6 billion the voting machine maker is seeking would be one of the biggest defamation awards of all time and would amount to roughly two-thirds of Fox’s adjusted profit in its most recent quarter.
Evidence like the Carlson text shows that Murdoch and other Fox executives and TV hosts knew the claims about Dominion were bogus even as the network amplified them for weeks after Trump lost the election to Biden. One incentive for Fox to settle is the potential for courtroom humiliation as Dominion lawyers grill Murdoch and his son Lachlan as well as Fox hosts Carlson, Sean Hannity, Maria Bartiromo and others.
The conspiracy theory, advanced by Trump and loyalists including Rudy Giuliani and Sidney Powell, culminated in the Capitol riot of January 2021. Finding jurors who can weigh the evidence in the politically charged case fairly is the biggest challenge for both Fox and Dominion, said Jessica Riley, a senior consultant at Magna Legal Services, which helps parties with jury selection.
“It may be easy to find jurors who haven’t necessarily heard of the details of this litigation in particular, and individuals who will acknowledge they haven’t developed strong feelings about the case,” she said. “What will be harder is finding individuals who don’t have strong feelings one way or another about whether the 2020 election was rigged.”
The case is Dominion Voting Systems v. Fox News Network LLC, N21C-03-257, Delaware Superior Court (Wilmington).
