Libel lawsuit over Fox News coverage of presidential election begins Monday

Starting Monday in a Delaware courtroom, Fox News executives and stars will be held to account for their role in spreading doubt about the 2020 presidential election and creating the gaping wound that remains in democracy. American.

Jurors hearing the $1.6 billion lawsuit brought against Fox by Dominion Voting Systems must answer a specific question: Did Fox defame the voting machine company by spreading false stories alleging that the election was faked against then-President Donald Trump, even so much on the network privately doubted the false claims being pushed by Trump and his allies?

Yet the larger context looms large. The trial will test the freedom of the press and the reputation of the Conservatives’ favorite source of information. It will also shed light on the flow of disinformation that helped spark the January 6, 2021, uprising on the U.S. Capitol and continues to fuel Trump’s hopes of returning to power in 2024.

Fox News stars Tucker Carlson and Sean Hannity, along with founder Rupert Murdoch, are among those expected to testify in the coming weeks.

Barring a last-minute settlement, opening statements are scheduled for Monday.

“It’s Christmas Eve for libel scholars,” said University of Utah law professor RonNell Andersen Jones.

Fox News commentator Sean Hannity is featured in New York City on March 16. A trial in Dominion Voting Systems’ libel lawsuit against Fox for broadcasting false allegations of fraud in the 2020 election is set to begin Monday in Delaware. Hannity should testify. (Evan Agostini/Invision/Associated Press)

Some Fox employees privately did not believe Trump’s claims

If the trial were a sporting event, Fox News would take the field on a losing streak, with key players injured and having just alienated the referee. Pre-trial court rulings and embarrassing revelations about its biggest names have Fox hot on its heels.

Court documents released over the past two months show Fox executives, producers and senior figures privately did not believe Trump’s claims of a fraudulent election. But Dominion says Fox News was afraid to alienate its audience from the truth — especially after many viewers were angered by the network’s decision to declare Democrat Joe Biden the winner in Arizona on election night in November 2020.

Certain rulings by Delaware Superior Court Judge Eric Davis, who is hearing the case, have eased Dominion’s path. In a summary judgment, Davis said it was “CRYSTAL clear” that the fraud allegations against the company were false. That means trial time won’t have to be spent disproving them at a time when millions of Republicans continue to doubt the 2020 results.

Davis said it’s also clear that Dominion’s reputation was damaged, but it will be up to a jury to decide whether Fox acted with “actual malice” — the legal standard — and, if so, what it is worth financially.

Fox’s witnesses will likely testify that they thought the allegations against Dominion were newsworthy, but Davis made it clear that it was not a defamation defense — and he’ll make sure the jury knows that.

New York law protects the media from defamation for the expression of opinions. But Davis methodically went through 20 different times on Fox when allegations against Dominion were discussed, ruling that all or part of them were considered statements of fact and fair game for a possible defamation finding.

Did Fox Knowingly Spread False Claims?

“A lawsuit is a lot like hitting a home run,” said Cary Coglianese, a law professor at the University of Pennsylvania. “You have to go through all the basics to get there.”

The judge’s rulings “essentially give Dominion a spot at third base, and all they have to do is go home to earn it,” he said.

Both Fox and Dominion are incorporated in Delaware, although Fox News is headquartered in New York and Dominion is based in Denver.

Fox angered Davis last week when the judge said network attorneys had delayed producing evidence and were unwilling to reveal Murdoch’s role to Fox News.

A person walks past a Fox News logo on a building.
A person walks past the Fox News headquarters in New York on April 12. (Yuki Iwamura/Associated Press)

It is unclear whether this will affect the trial. But it’s generally unwise for a judge to question at the start of a trial whether your side is telling the truth, especially when the truth is the focus of the case, said Jones of the University of ‘Utah.

The lawsuit essentially boils down to whether Dominion can prove that Fox acted with actual malice by broadcasting something knowing it knew it was untrue or by acting in “reckless contempt” to find out if it was true.

Dominion can cite many examples where Fox personalities did not believe the accusations made by Trump allies such as Sidney Powell and Rudolph Giuliani. But Fox says many of these miscreants were in no position to decide when to air these allegations.

“We think it’s critical for them to connect those dots,” Fox attorney Erin Murphy said.

The jury will determine whether a powerful figure like Murdoch – who testified in deposition that he did not believe the voter fraud charges – had the influence necessary to keep the charges from being aired.

“Credibility is always important in any lawsuit, in any case. But it will be really important in this case,” said Jane Kirtley, director of the Silha Center for the Study of Media Ethics and the Law at the University. of Minnesota.

Kirtley fears the lawsuit could eventually go to the U.S. Supreme Court, which could use it as a pretext to water down the actual malice standard established in a 1964 decision in New York Times Co. v. Sullivan. This, she said, would be disastrous for journalists.

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Against the backdrop of the January 6 Committee hearings, a $1.6 billion defamation lawsuit against Fox News is shaping up to be a very big deal. Dominion Voting Systems accuses Fox of pushing false claims of voter fraud that cast Dominion as the bad guy. This week, former attorney general William Barr was subpoenaed by the court – a sign that things are moving in “a very serious direction”, according to Erik Wemple, columnist and media critic for The Washington Post.

Dominion’s lawsuit is being closely watched by another voting technology company with a separate but similar case against Fox News. Florida-based Smartmatic has looked to some rulings and evidence in the Dominion case to try to improve its own $2.7 billion libel lawsuit in New York. The Smartmatic case is not yet ready for trial, but has survived efforts by Fox News to have it thrown out.

Many pundits are surprised Fox and Dominion haven’t reached an out-of-court settlement, though they could do so at any time. There is probably a large financial chasm. In court papers, Fox argues that the $1.6 billion damages claim is a wild overstatement.

Dominion’s motivation may also be to inflict maximum embarrassment on Fox by peeking into the network’s internal communications after the election. Text messages from January 2021 revealed that Tucker Carlson told a friend he passionately hated Trump and was looking forward to moving on.

Dominion can also request an apology

The reaction of Fox viewers is an open question. Fox has almost completely banned discussing the lawsuit on its television network or website.

“The real potential danger is that Fox viewers will feel like they’ve been lied to. There’s a real downside to that,” said Charlie Sykes, founder of the Bulwark website and MSNBC contributor.

Two voting machines.
Dominion ballot counting machines are displayed at a warehouse in Torrance County during election equipment testing with local candidates and partisan officers in Estancia, NM on September 29, 2022. (Andres Leighton/Associated Press)

There is no indication that the case has changed Fox’s editorial direction or reduced its viewership. Fox has embraced Trump again in recent weeks after the former president was indicted by a Manhattan grand jury, and Carlson offered an alternate history of the Capitol riot, based on tapes given to him by the president of the United States House, Kevin McCarthy.

Just because Fox didn’t discuss Dominion’s lawsuit on air doesn’t mean its fans aren’t aware of it, said Tim Graham, director of media analysis at conservative Media Research. Center.

“There’s a certain tribal reaction to that,” Graham said. “When all the other networks are ecstatic about leaking text messages and emails, they see this as the liberal media’s latest attempt to undermine Fox News. There’s going to be a rallying effect around Rupert.”

The trial is expected to last until the end of May.

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