In the aftermath of the 2020 presidential election, the most-watched cable news network in the US gave Donald Trump and his allies a platform for their false claims that it was rigged against him.
At the centre of many election lies, conspiracy theories and the former president’s spurious legal challenges to reverse the outcome was Dominion Voting Systems – a voting machine company baselessly accused of flipping votes.
Those claims were aired uncritically on Fox News.
Those claims were false, a judge has determined.
And further, many of the network’s top on-air personalities, producers and executive leadership at Fox Corporation knew that, including right-wing media mogul Rupert Murdoch and Tucker Carlson, the most-watched host on the most-watched network.
This week, a judge in Delaware, where Fox is incorporated, is expected to preside over a six-week jury trial stemming from Dominion’s $1.6bn lawsuit against the network, which will defend itself against Dominion’s argument that false statements about the company in the wake of the election were defamatory, costing Dominion significant business and reputational harm.
On Sunday evening Judge Eric Davis announced that the trial had been suddenly delayed – mere hours before opening statements were scheduled to begin on Monday morning.
No explanation was given for the sudden delay but multiple reports have revealed that Fox News is now pushing to settle the case before the trial gets under way. Lawyers for the two sides were expected to meet on Monday to discuss a potential settlement, according to The Wall Street Journal.
However, no settlement was announced and jury selection is expected to resume at 9am ET on Tuesday – followed by opening statements from both sides.
Defamation cases rarely go to trial, but it will be up to the jury in Superior Court in Wilmington to determine whether the claims on Fox News meet the high bar for the “actual malice” standard – meaning that the network knowingly presented false claims with reckless disregard for the truth.
In his 80-page decision allowing the case to go to trial, Judge Davis wrote that “the evidence developed in this civil proceeding demonstrates that [it] is CRYSTAL clear” – emphasis his – “that none of the Statements relating to Dominion about the 2020 election are true.”
“We want to encourage a robust and wide-open discussion about public affairs, especially about how to run our governments, and we want to allow for some breathing room … to let people talk about this without having to do the full journalistic run at it,” Andrew Geronimo, director of the First Amendment Clinic within the Milton and Charlotte Kramer Law Clinic at Case Western Reserve University School of Law, told The Independent last month.
“But what you can’t do is knowingly lie about somebody in a way that damages them.”
The former president waged a public assault on absentee or mail-in voting, which he called a “hoax” and “corrupt” before a single ballot was even cast in 2020 elections, casting public doubt about the process in an apparent effort to justify challenging the outcomes.
In the months that followed, Republican lawmakers across the US launched a coordinated campaign under the guise of preserving “election integrity” and restoring “voter confidence” that the president himself undermined.
The persistent lie that the election was stolen from him – and his legal team’s baseless attempts to overturn millions of Americans’ votes – fuelled violence at the US Capitol on 6 January, 2021, sustained election investigations and “audits” in an effort to reverse the outcomes in states that Mr Trump lost, and inspired GOP-led legislation in nearly every state to change how elections are run.
The trial is among several election-related cases playing out in courtrooms and prosecutors’ offices across the country.
Mr Trump, whose pursuit to upend an American election is driving his 2024 ambitions, was criminally charged in New York in a case involving hush money payments to at least two women ahead of his 2016 election, and a prosecutor in Georgia is reportedly considering charges against more than a dozen people connected to Mr Trump’s attempt to pressure officials to overturn his loss in the state in 2020.
Fox was also separately sued by a now-former producer who has accused the company’s lawyers of coercing her testimony in the Dominion case.
Mr Trump and Mr Murdoch were not close; Mr Murdoch’s The Wall Street Journal called his former know-nothing nuisance a “catastrophe” and Mr Murdoch himself said he was “embarrassing” the country.
But their fortunes intertwined with Mr Trump’s presidency and its aftermath, which boosted Fox ratings but now presents significant threats to both men.
Despite Mr Murdoch’s apparent support for the network’s correct prediction that Joe Biden won in the state of Arizona, Fox leadership met over concerns of “mounting viewer backlash” over the call, according to court filings.
Network leadership appeared to agree to provide a platform for “wild claims” that the election was stolen from Mr Trump because “positive impressions of Fox News” among its viewers “dropped precipitously after Election Day to the lowest levels” the network had seen, Dominion argues.
Indeed, Dominion’s extensive filings leading up to the trial have stitched together a much-larger picture of the Fox organisation, its decision making, and its concerns over declining viewership with competition from other networks that indulged the former president’s conspiracy theories.
Attorneys for Fox News have argued that the network not only had an obligation to cover those allegations, especially those endorsed by a sitting president, as newsworthy, but that they also are protected by the First Amendment.
The network’s legal team has warned that the case could set a dangerous precedent for press freedoms and media companies’ abilities to report on other newsworthy allegations.
“This case is and always has been about the First Amendment protections of the media’s absolute right to cover the news,” a Fox spokesperson said in a statement shared with The Independent.
“Fox will continue to fiercely advocate for the rights of free speech and a free press as we move into the next phase of these proceedings.”
Dominion’s case alleges that Fox News is a media empire that relies on lying to its audience.
The company’s extensive court filings revealed private admissions among Fox producers, executives and programme hosts questioning or ridiculing the network’s unreliable guests and their dubious arguments about Dominion, while, at the same time, conceding that the network risked alienating Fox viewers if it publicly rejected those claims.
“Really crazy stuff. And damaging,” Mr Murdoch wrote in a message on 19 November 2020 email as he watched Mr Trump’s former attorney Rudy Giuliani airing false claims about Dominion during a press conference, court filings show.
Last week, Judge Davis rebuked Fox lawyers for not being “straightforward” with him.
He imposed a sanction against Fox News and Fox Corporation for allegedly withholding evidence in the case and said he was considering appointing an outside counsel to investigate Fox’s handling of documents and whether it had withheld details about the scope of Mr Murdoch’s role.
The judge ruled that if Dominion needed other depositions, Fox would have to “do everything they can to make the person available, and it will be at a cost to Fox.”
That evidence includes recordings between Mr Giuliani and a Trump campaign aide with Fox personality Maria Bartiromo, which Dominion said was turned over just one week earlier.
Davida Brook, a lawyer for Dominion, told the court last week that the legal team was still receiving relevant documents from Fox despite an imminent trial.
“We keep on learning about more relevant information from individuals other than Fox,” she said. “And to be honest we don’t really know what to do about that, but that is the situation we find ourselves in.”
In a statement, Dominion said the evidence to be presented at trial “will show that Dominion was a valuable, rapidly growing business that was executing on its plan to expand prior to the time that Fox began endorsing baseless lies about Dominion voting machines”.
Dominion’s “business suffered enormously” as a result, according to a statement. “and its claim for compensatory damages is based on industry-standard valuation metrics and conservative methodologies. We look forward to proving this aspect of our case at trial.”
