A lawyer for Fox argued its top executives were not directly involved enough in its coverage of false claims of voter fraud during the 2020 election to justify holding them liable for defamation.
Erin Murphy, Fox’s attorney, defended Fox during the second and final day of a pre-trial hearing in Delaware on Wednesday in the closely watched $1.6bn defamation case. It was part of her multi-pronged defense to rebut evidence presented by attorneys for Dominion Voting Systems that top executives, including Rupert and Lachlan Murdoch, knowingly aired false claims about the company.
Dominion is suing the rightwing network over its decision to repeatedly air false claims about its voting equipment as Donald Trump and allies tried to overturn the last presidential election.
“You have to bring it home to someone who’s directly involved in the publication,” Murphy said. “Even if they have evidence that an executive knew Fox News was generally running coverage about election fraud … it’s not specific to oh yes we have knowledge about these four particular allegations.”
Both sides are asking Eric Davis, a Delaware superior court judge, to rule in their favor ahead of an expected trial in mid-April. His ruling will likely set the scope of the trial and the hearing for summary judgment featured a preview of what to expect during it.
Davis challenged Murphy’s argument at times, asking whether it was her position that top officials at the company really did not have the authority to step in and halt a host like Lou Dobbs from making outlandish claims about Dominion and voter fraud. He also pointed out that executives failed to act even after they saw guests repeatedly coming on shows and making false claims about the election.
“Is Fox’s position that executives didn’t have the power to stop Lou Dobbs from doing something like that?” Davis asked. He seemed skeptical of some of Fox’s arguments on Tuesday as well, though he concluded the hearing by cautioning against reading too much into his inquiries.
Murphy’s argument drew an an animated response from Justin Nelson, a lawyer representing Dominion. He pointed to an email in which Rupert Murdoch expressed some concern about how the network was covering the voter fraud claims. Nelson also highlighted a message in which a producer for host Jeanine Pirro reviewed a script for her show that included claims about Dominion and said it was “rife w conspiracy theories and bs and is yet another why this woman should never be on live television”.
In another example, Nelson pointed to a message that showed another Fox executive had watched a pretape of an interview containing false claims about Dominion. The executive, David Clark, later told lawyers in his deposition he was aware at the time about false conspiracy theories in the election. “He watched the pretape. He watched it. He knew it. He let it go,” Nelson said.
Much of Murphy’s argument on Tuesday had focused on the idea that Fox News was not presenting facts to its audience, but rather what reasonable viewers would have understood to be allegations from Donald Trump and his lawyers. Rodney Smolla, a lawyer for Dominion, said that argument was nothing more than “legal fairy dust.”
“When you publish another’s statement you adopt it as your own,” he said. “When you put the guests on, that became your publication. And that’s what matters.”
Stephen Shackelford, another Dominion lawyer, also challenged Murphy’s argument that Fox was simply informing viewers by bringing Trump lawyer Sidney Powell on its airwaves to understand the president’s allegations about Dominion. He noted that Powell wasn’t even the president’s lawyer when she began leveling the claims on Fox, and an internal Fox email showed Powell was getting shut out of the White House. Powell, in turn, used Fox as a platform to spread false claims about Dominion and get the attention of the public and Trump.
“Sidney was hunting for someone to make her relevant and Fox made her relevant,” he said. “Fox mainstreamed the vote rigging conspiracy theory.”
On Tuesday, Justin Nelson, a Dominion lawyer, had presented a slew of internal communications from Fox News showing hosts, producers and executives all knew the claims about Dominion were false.
That evidence is in service of Dominion’s effort to prove that Fox News committed “actual malice” when it knew the statements were false or recklessly disregarded the truth when it published claims about Dominion.
Davis said on Tuesday he had not reached a decision. His ruling, expected in early April, will probably set out the scope of issues for a trial scheduled later that month.
Abby Grossberg, a Fox News staffer, separately sued the network this week, saying she was coerced by attorneys into giving misleading testimony in the lawsuit.
Fox sent the Guardian a statement in response. It read: “Fox News Media engaged an independent outside counsel to immediately investigate the concerns raised by Ms Grossberg, which were made following a critical performance review.
“Her allegations in connection with the Dominion case are baseless, and we will vigorously defend Fox against all of her legal claims, which have no merit.”
The lawsuit briefly came up at the end of Wednesday’s hearing and lawyers for both sides said they would confer over how it could affect the case.
There was also a brief discussion on Wednesday over messages and depositions that remain redacted and shielded from public view. Fox argues that the redactions are needed in order to preserve proprietary newsgathering techniques and source relationship. Davida Brook, a lawyer for Dominion, said Fox was “essentially redacting embarrassing information.”
Davis is also expected to issue a ruling on that soon.
