The blockbuster $1.6bn defamation suit between Dominion Voting Systems and Fox is set to begin Tuesday in a courtroom in Wilmington, Delaware, opening a six-week tribunal that has been one of the most muscular efforts to hold the powerful news network accountable for its role in spreading lies about the 2020 election.
Dominion is suing Fox News and its parent company Fox Corporation, for knowingly spreading false claims about its equipment after the 2020 election. Fox repeatedly broadcast outlandishly false allegations that the company had paid government bribes, switched votes and was founded in Venezuela to rig elections for the dictator Hugo Chavez.
The trial was scheduled to begin on Monday, but Eric Davis, the Delaware superior court judge overseeing the case, pushed it back by a day without giving a reason. It was reported that both sides were engaged in negotiations over a settlement to avoid a trial.
Jury selection will be completed Tuesday followed by opening arguments.
The trial is likely to be a media frenzy. Rupert and Lachlan Murdoch, the top Fox executives, are expected to be called as witnesses. Fox News anchors, including Tucker Carlson, Sean Hannity, Maria Bartiromo and Jeanine Pirro are all expected to testify at the trial.
At the heart of Dominion’s case is a trove of internal messages from Fox hosts and executives in which they openly say they knew the outlandish claims about Dominion were false. “Sidney Powell is lying by the way. I caught her. It’s insane,” Carlson wrote in one such message, even as Fox continued to air Powell’s claims about Dominion. “In the coming weeks, we will prove Fox spread lies causing enormous damage to Dominion. We look forward to trial,” a Dominion spokesperson said.
Defamation cases rarely go to trial because there is such a high bar a plaintiff has to clear to win. But experts observing the lawsuit say Dominion has put together an unusually strong case. The company may have strong enough evidence to show that Fox acted with “actual malice”, that Fox knew the claims were false or acted with reckless disregard for the truth.
“It’s a rarity that we’ll see something of this caliber play out in front of a jury,” said RonNell Andersen Jones, a first amendment scholar at the University of Utah.
The case could also have broader implications for media in the US. Fox has said that a win for Dominion would be a blow for the first amendment. Some experts have expressed similar concerns. Many news organizations may not be able to afford the lengthy legal battle that Fox can, said Jane Kirtley, a professor at the University of Minnesota and former executive director for the Reporters’ Committee for Freedom of the Press.
“The risk of big money judgments deters investigative journalism. Unfortunately, I’d predict if Fox loses, we’ll see a significant uptick in libel cases against all news organizations,” she said. “Most news organizations will have a digital paper trail, which, though perhaps not as damning as Fox’s, could indicate (at least in a jury’s mind) bias, irreverence, carelessness and so forth.”
But other experts see it differently. If Dominion were to prevail in the case, it could show that news organizations can still be held accountable despite the high bar plaintiffs must clear. If Fox were to prevail in the case, some say, it would be difficult to imagine what a plaintiff would need to show to prove a defamation claim.
Davis issued a series of pretrial rulings limiting what Fox can argue in its defense. Fox may spend a significant portion of the trial focused on the idea that the specific individuals responsible for airing the challenged claims did not know they were false. The network could also focus its defense on challenging the $1.6bn in damages Dominion says it is owed.
Fox is already facing additional legal challenges stemming from the trial. Davis said Wednesday he plans to appoint a special master to investigate whether the network withheld relevant evidence. Fox also apologized on Friday for failing to disclose Rupert Murdoch’s position as an officer at Fox News until last week, telling Davis on Friday there was a “misunderstanding.” Abby Grossman, a former Fox News employee, is also suing the network, claiming she was coerced into giving misleading testimony. She also has made public new recordings in which Rudy Giuliani and Trump campaign officials say they can’t substantiate fraud allegations.
“As counsel explained to the Court, FOX produced the supplemental information from Ms. Grossberg when we first learned it,” a Fox spokesperson said in a statement. “Rupert Murdoch has been listed as executive chairman of FOX News in our SEC filings for several years and this filing was referenced by Dominion’s own attorney during his deposition.”
The company is also facing a lawsuit from a shareholder who says the Murdochs and other officials breached their fiduciary duty by allowing false claims to be aired.
A Fox spokesperson noted that viewership data “has not been impacted by the Dominion case” and has been steady or increased since the start of the trial process in mid-February.