America’s most popular and divisive cable news network is on trial in Delaware for airing falsities about the outcome of the 2020 presidential election.
Dominion Voting Systems, a voting technology company, is suing Fox News and its parent corporation for defamation, claiming the network knowingly aired false allegations that Dominion’s voting machines turned the election result in favor of Joe Biden over former President Donald Trump − and that those lies did more than a billion dollars in damage to Dominion’s business.
In its defense, Fox News claims it was simply reporting on allegations being made by newsworthy figures like Rudy Giuliani and other representatives of former President Donald Trump.
A jury of 12 Delawareans is set to begin evaluating evidence in the case starting Monday.
Here’s a rundown of what you should know:
What sparked this lawsuit?
Even before the 2020 presidential race was called, Fox News hosts and guests promoted false claims that Trump, not Biden, won the election.
Dominion and Smartmatic, another voting-machine company, were then found in the crosshairs of these attacks, being accused of helping Democrats rig the election. Dominion claims Fox knowingly spread falsehoods to pander to its conservative base of customers.
Fox has denied all wrongdoing, saying its hosts were covering the most important news story of the day. Fox News released a statement days before trial that described the lawsuit to be a “political crusade in search of a financial windfall.”
“While Dominion has pushed irrelevant and misleading information to generate headlines,” the statement reads, “FOX News remains steadfast in protecting the rights of a free press, given a verdict for Dominion and its private equity owners would have grave consequences for the entire journalism profession.”
BACKGROUND: Fox News sanctioned by Delaware judge for withholding evidence in $1.6B defamation trial
Delaware Superior Court Judge Eric Davis ruled in late March that Dominion proved Fox aired false information about the company on its broadcasts. This was a key win for Dominion because it no longer needs to prove this to jurors during the course of the trial.
“The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true,” Davis wrote in his summary judgment ruling.
Why is the case being tried in Delaware?
The blockbuster lawsuit could affect public discourse, journalism and the Republican Party’s primary television mouthpiece permanently.
So why is the conflict being litigated in a courthouse in little old Wilmington?
It’s because both Dominion and the Fox defendants are each Delaware corporations, though both are headquartered and operate elsewhere. It is the latest big-ticket legal fight to occur in Delaware for that reason. Billion-dollar disputes involving CBS Corp., Facebook, Tesla and other major companies have all come through Delaware in recent years.
Carl Tobias, a University of Richmond law professor, called this case one of the most significant defamation cases the country has seen in decades.
“I can’t think of another one that has been as consequential in recent history,” Tobias said. “It clearly ranks as one of the most important, partly because of who the players are.”
Who is the judge?
On a normal day, Superior Court Judge Eric Davis might be presiding over a carjacking trial or a civil suit over a car crash.
He began his career as a litigator rising to partner at Skadden, Arps, Slate, Meagher & Flom LLP. He was appointed to the bench first in 2010 as a judge on the Court of Common Pleas, which presides over misdemeanor and minor felony cases. He became a Superior Court judge in 2012.
Through the course of the highly publicized pretrial litigation in the case, he has been widely praised by onlookers, and quoted in national media as even-handed and reasonable, even after episodes of chiding attorneys representing Fox News for last-minute evidentiary disclosures and disagreements with the management of the case.
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“He strikes me as a judge’s judge,” said Tobias, the law professor at the University of Richmond. “Even keeled. He doesn’t get flustered. He tries to be fair. I mean, what more could you want in a judge?”
On the eve of trial Thursday afternoon, Davis sought to deflect attention from himself while addressing attorneys.
“I know it seems I have a big ego and I want to be the center of attention,” Davis said. “I don’t.”
What’s at stake in the lawsuit?
The lawsuit is essentially a claim that Fox News’ broadcasting of lies caused reputational and financial harm to Dominion, a legal claim known as defamation. The company is seeking $1.6 billion in damages it says were caused by Fox News’ statements.
Davis, the judge, has already ruled the statements about Dominion that are central to the lawsuit were undoubtedly false, so during trial Dominion’s case will largely be aimed at proving what is known as “actual malice.”
Actual malice is a legal standard set in place by the U.S. Supreme Court starting in the 1960s that set a high bar for politicians and other public figures to show they were defamed.
“That made it much harder to use defamation law to intimidate the press,” said David Finger, a Wilmington-based First Amendment attorney.
Under this standard, Dominion will have to convince jurors that Fox News officials either knew the information about Dominion was false or displayed a reckless disregard for the truth regarding the claims.
Who are the key Fox personalities and executives involved in this lawsuit?
There is a long list of Fox News hosts, guests and powerful executives who are involved in this lawsuit, with several expected to testify during the trial.
Many of what Dominion claims were defamatory statements revolve around comments three frequent Fox News guests made: Mike Lindell, Rudy Giuliani and Sidney Powell. Dominion intends to prove that the network gave these three Trump associates a platform to repeatedly tell inaccurate information.
One of the biggest moments of the trial will likely revolve around Rupert Murdoch, chair of Fox Corp. and executive chairman of News Corp. Dominion is expected to subpoena the media mogul to testify on the stand.
Murdoch in his deposition for this lawsuit acknowledged that Fox News hosts “endorsed” the false claims of the election being stolen. He said he could have done more to stop it but did not.
In terms of hosts, Sean Hannity, Jeanine Pirro, Maria Bartiromo, Lou Dobbs and Tucker Carlson could also testify. And so could Abby Grossberg, the former Fox News producer who recently filed lawsuits against her former employer. Grossberg claims that Fox lawyers pressured her during her deposition to give false testimony in order to protect Fox.
It was also recently revealed that Grossberg had recordings of Bartiromo and Trump associates, which led to the judge sanctioning Fox for withholding evidence.
Here’s a list of other Fox hosts and executives who could testify:
- Lachlan Murdoch, son of Rupert and CEO of Fox Corp.
- Suzanne Scott, CEO of Fox News
- Joe Dorrego, chief operating officer & chief financial officer at Fox News Media
- Jay Wallace, president and executive editor of FOX News Media
- Paul Ryan, former speaker of the House and Fox Corp. board member
What other key moments have happened so far?
In pretrial hearings, the judge sanctioned Fox lawyers and is expected to authorize an investigation into whether the network’s lawyers withheld evidence.
Davis ordered that Grossberg’s recordings are directly related to the case and said that if Dominion needs to redo depositions, then Fox will make the person available and cover the costs. Fox has maintained that it did not withhold these recordings and the legal team made them available when lawyers first learned of them.
The judge also scolded Fox after he learned that Murdoch is a corporate officer for the cable news network. Davis indicated he will appoint a special master to investigate the issue and he will consider additional sanctions.
READ:Delaware residents will decide outcome of Fox News defamation case
This stemmed from Dominion, last week, claiming Fox withheld this information about Murdoch over the last two years, despite repeated requests for information about Fox News’ corporate structure. Dominion lawyers said this prevented them from receiving a significant number of documents during discovery.
Fox lawyers pushed back on this, saying the information was made clear during Murdoch’s deposition. Davis, the judge, said he too felt misrepresented and told Fox’s legal team they have a “credibility problem.”
“I need people to tell me the truth,” Davis said. “By the way, an omission is a lie.”
Are there other similar lawsuits?
Fox News and Fox Corp. are just two of many organizations and people that Dominion has sued over the false claims about its voting machines. The other parties Dominion has filed lawsuits against include:
- One American News Network
- Newsmax
- Patrick Byrne, former head of Overstock
- Rudy Giuliani, Trump’s attorney
- Sidney Powell, former Trump lawyer
- Mike Lindell, MyPillow founder and chief executive officer
Contact Meredith at mnewman@delawareonline.com or call her at 302-256-2466.
