After weeks of depositions and legal manoeuvring, the much-anticipated defamation trial against Rupert Murdoch’s Fox News begins this week.
The trial comes after Dominion Voting Systems launched a multibillion-dollar defamation claim against Fox News for promoting discredited conspiracy theories claiming Donald Trump was robbed of the 2020 US election.
Testimony given in the hearings, and the trial’s outcome, have massive implications for Fox News and its owners.
Dominion alleges that Fox took the stance of supporting Mr Trump’s false claims that he won the election – including potentially damaging information about the company’s voting technology – because “the lies were good for Fox’s business”.
Fox maintains it was merely reporting the claims made by the Trump administration and Mr Trump’s associates.
The trial was originally to have started on Monday in Delaware, before Superior Court Judge Eric Davis announced it would be delayed by one day.
Who will give testimony?
A number of Fox News personalities and executives are expected to be called to the stand as witnesses, as well as Fox Corporation chairman Rupert Murdoch.
Dominion will also attempt to gain testimony from high-profile hosts Sean Hannity, Tucker Carlson, Maria Bartiromo, Laura Ingraham and Bret Baier, as well as Fox News CEO Suzanne Scott and Fox News president Jay Wallace.
Also expected to appear is former Fox News producer Abby Grossberg, who alleged Fox lawyers coerced her into providing misleading testimony in a lawsuit filed in March.
What’s at stake?
Dominion is seeking $US1.6 billion ($2.4 billion) in damages from Fox, as well as additional punitive damages to be determined by the court.
Fox Corporation has an estimated $US4 billion ($6 billion) in cash on hand, according to its latest earnings statement.
Fox is also likely to have defamation insurance, but it is not known how much or what that would cover.
Punitive damages are uncapped in Delaware – meaning there is no limit to the amount that could be awarded against Fox should it lose.
Fox says the damages claim is an over-estimated amount designed to grab attention in the media.
Dominion has defended its damages model, which it has said is based on industry-standard accounting methods.
Wider implications
Fox News says its case revolves around defending the First Amendment to the Constitution of the United States and defending “the rights of the free press”.
It claims a verdict in favour of Dominion would have “grave consequences” for the rights of the press.
“Dominion’s lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights,” Fox has said in a statement.
How difficult is the Dominion case?
Defamation cases against the media are difficult to win in the United States.
The Supreme Court’s 1964 ruling in New York Times v Sullivan case sets the precedent for most cases and sets the burden of proof extremely high.
To be successful, a defamation action must prove not only that an entity has lied, but has done so in the knowledge (or strong suspicion) it was lying at the time and it was done with “actual malice”.
The Delaware Supreme Court has already ruled that Fox News knowingly broadcast lies. It must now decide whether those actions were malicious.
Major figures at Fox privately acknowledged that Mr Trump lost the election to President Joe Biden in 2020, but Fox continued to air conspiracies and lies in order to keep its largely right-wing audience engaged.
Private messages, emails and depositions obtained by Dominion’s lawyers show that Fox may not have upheld the journalistic responsibility to report the truth to audiences.
The judge has already rejected several of Fox’s First Amendment defences and has barred the network from arguing its guests’ alleged defamatory statements were “newsworthy” and deserving of coverage.
What do the Fox documents show?
Public legal filings have revealed a trove of deposition transcripts, private text messages and emails that show how Fox hosts, producers and executives really felt about Mr Trump and his election claims.
Host Tucker Carlson said in one text message that he “passionately” hates Mr Trump.
In one November 2020 exchange he said Mr Trump’s decision to snub President Biden’s inauguration was “so destructive”, and described Mr Trump’s post-election behaviour as “disgusting”.
Rupert Murdoch emailed former New York Post editor Col Allan, describing Mr Trump’s election claims as “bulls–t” and “damaging”.
Mr Murdoch’s private messages also revealed that his personal thoughts on the election outcome contradicted those promoted by Fox, with one saying: “Maybe Sean [Hannity] and Laura [Ingraham] went too far.”
What happens now?
Jury selection is expected to wrap up on Tuesday morning local time and opening statements should begin immediately after the jury is seated.
The trial is expected to last five to six weeks, and in that time Dominion will need to convince the 12-person jury that Fox News acted with “actual malice” and show how the network’s hosts and executives knew that what was being said on air was false, but broadcast it anyway, or acted with such a reckless disregard for the truth that they should be held liable.
-with agencies
