Will go to trial next month....

Dominion defamation case against Fox News will go to trial next month, judge rules

By Marshall Cohen and Oliver Darcy

Dominion Voting Systems’ historic defamation case against Fox News will proceed to a high-stakes jury trial next month, a Delaware judge ruled Friday, declining to declare a pretrial winner.

The judge’s decision represents a major legal setback for Fox News and sets the stage for an agonizing weeks long trial in which some of the right-wing channel’s highest ranking executives and most prominent hosts could be called to the stand to testify about the 2020 election lies that were promoted on its air.

Both sides had asked Delaware Superior Court Judge Eric Davis for a pretrial ruling in their favor, declaring them the winner at this stage. But after thousands of pages of filings and exhibits, and a series of courtroom clashes in Wilmington, Davis decided that the case should go to trial.

But in his Friday ruling, Davis said that the evidence Dominion presented shows Fox News aired falsehoods about the company.

“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.

While rejecting Dominion’s motion for a full-blown victory, the judge granted a partial win to Dominion on some key legal questions, which will give the company a boost at trial.

Davis determined that the Fox News on-air statements at the heart of the litigation were either factual assertions or “mixed opinion,” which might make it harder for Fox to defend itself in front of the jury. Fox had asked Davis to rule that the statements were “pure opinion,” and therefore couldn’t be defamatory under the First Amendment.

“The context supports the position that the statements were not pure opinion when they were made by newscasters holding themselves out to be sources of accurate information,” Davis wrong in his 130-page ruling.

The on-air statements, from various Fox News hosts after the 2020 election, had accused Dominion of rigging the election by flipping millions of votes from Donald Trump to Joe Biden.

“We are gratified by the Court’s thorough ruling soundly rejecting all of Fox’s arguments and defenses, and finding as a matter of law that their statements about Dominion are false. We look forward to going to trial,” a Dominion spokesperson said in a statement.

“This case is and always has been about the First Amendment protections of the media’s absolute right to cover the news. 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,” a Fox spokesperson said in a statement.

Jury selection is scheduled for April 13.

It was always unlikely that either side would prevail at this stage of the proceedings.

Unless there is an out-of-court settlement – which is always possible – Davis’ ruling means jurors will have to decide whether Fox News defamed Dominion by repeatedly promoting false claims that the voting technology company rigged the 2020 presidential election against Donald Trump.

Fox News and its parent company, Fox Corporation, deny all wrongdoing and have argued that their conspiracy theory-filled broadcasts after the 2020 election were protected by the First Amendment, because they were merely reporting on “newsworthy allegations.”

Their legal liability will be decided at trial. But the case has already battered Fox’s reputation.

Incriminating texts and emails have shown how Fox executives, hosts and producers didn’t believe the claims the network was peddling about Dominion. These revelations drove a dagger through the idea that Fox News is anything but a partisan GOP operation focused on ratings – not journalism.

The lawsuit is seen as one of the most consequential defamation cases in recent memory. Fox has argued that a loss will eviscerate press freedoms, and some scholars agree that the bar should remain high to prove defamation. Other analysts have said holding Fox accountable for knowingly airing lies won’t pose a threat to objective journalists who would never do that in the first place.

The case has elicited a mountain of evidence exposing Fox News as a right-wing profit machine lacking the most basic journalistic ethics – and willing to promote unhinged election conspiracy theories to preserve its lucrative business.

Rupert Murdoch, the Fox Corporation chairman, conceded in his sworn deposition that several of his top hosts endorsed election lies on the air that he knew were false. And after the 2020 election, its most prominent stars and highest-ranking executives privately trashed the conspiracy theories that were being spread on-air, according to internal text messages and email exchanges that became public as part of the lawsuit.

The legal filings showed how worried Fox News executives and hosts were of losing viewership to Newsmax, a smaller right-wing talk channel that was saturating its airwaves with election denialism.

After the election, a furious Donald Trump attacked Fox News and encouraged his followers to switch to Newsmax. And, in the days and weeks after the presidential contest had been called, they did just that. Fox News shed a chunk of its audience while Newsmax gained significant viewership, leading to panic inside the building and prompting network leadership to embrace the election denialism that enveloped a large part of the Republican Party.

In multiple instances, Fox News executives and hosts started to crack down on those at the network who fact-checked election lies, private messages revealed in court filings showed. In one case, Tucker Carlson and Sean Hannity exchanged messages about trying to get White House correspondent Jacqui Heinrich fired for fact-checking a tweet about supposed voter fraud. In another case, when host Neil Cavuto cut away from a White House press briefing where election misinformation was being promoted, senior Fox News leadership were told such a move presented a “brand threat.”

Despite what appeared on air, Fox News executives and hosts privately criticized the Trump camp for pushing claims of election fraud. Hannity said Rudy Giuliani, Trump’s then-lawyer, was “acting like an insane person” and Ingraham described him as “an idiot.” Rupert Murdoch said it was “really bad” that Giuliani was advising Trump.