Dominion’s historic defamation case against Fox News will go to trial, judge rules, in major decision dismantling key Fox defenses
By Marshall Cohen and Oliver Darcy, CNN
Dominion Voting Systems’ historic defamation case against Fox News will proceed to a high-stakes jury trial in mid-April, a Delaware judge ruled Friday, in a major decision that dismantled several of the right-wing network’s key defenses.
The judge’s decision is a painful setback for Fox News and sets the stage for an agonizing, weekslong trial, where the network’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. After thousands of pages of filings and exhibits, and a series of courtroom clashes, Davis decided the case should go to trial. But one question jurors won’t need to weigh, he concluded, was whether Fox’s claims about Dominion were true or false.
“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.
Unless there is an out-of-court settlement — which is always possible — Davis’ ruling means jurors will need to decide whether Fox News defamed Dominion by repeatedly promoting false claims that the voting technology company rigged the 2020 presidential election by flipping millions of votes from Donald Trump to Joe Biden. Dominion wants $1.6 billion in damages.
Jury selection is scheduled to begin on April 13 in Wilmington, Delaware.
Fox News and its parent company, Fox Corporation, deny all wrongdoing. They’ve argued that their conspiracy theory-filled broadcasts after the 2020 election were protected by the First Amendment, because their on-air reporters were merely reporting on “newsworthy allegations.”
“This case is and always has been about the First Amendment protections of the media’s absolute right to cover the news,” a Fox spokesperson said in a statement after the ruling. “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.”
Judge blocks key Fox defenses
In his 130-page ruling, Davis dismantled several of Fox News’ potential trial defenses, dealing a significant blow to the network. On the whole, these findings from Davis take away several key arguments that Fox could’ve presented to the jury, making it harder for them to prevail at trial.
Davis ruled that Fox News can’t invoke the “neutral report privilege,” which protects journalists who neutrally pass along newsworthy allegations in an unbiased fashion. Dominion had argued that Fox News hosts essentially took a side while covering the fallout of the 2020 election, by throwing their weight behind the false idea that the results were illegitimate, and Dominion was to blame.
“The evidence does not support that (Fox News) conducted good-faith, disinterested reporting,” Davis wrote. “(Fox News’) failure to reveal extensive contradicting evidence from the public sphere and Dominion itself indicates that its reporting was not disinterested.”
The judge also blocked Fox News from using the “fair report privilege” with the jury. That legal doctrine protects journalists who report on what is being said at official proceedings, like congressional hearings, or on allegations being levied in court filings, like in a civil lawsuit.
Davis pointed out that the timeline of Fox’s on-air statements didn’t sync up with the lawsuits, many filed by pro-Trump lawyers like Sidney Powell, that sought to overturn the 2020 election.
“Most of the contested statements were made before any lawsuit had been filed in court,” Davis wrote, adding that out of the nearly 20 broadcasts on Fox’s networks that Dominion claims damaged their reputation, “only one broadcast at issue even mentioned Ms. Powell’s lawsuit.”
The judge gave Dominion a boost by determining that the 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 wrote.
Davis additionally wrote in his ruling that even if the statements were opinion, Fox News would not be protected under the Constitution, given that they appeared to “charge Dominion with the serious crime of election fraud.”
“Accusations of criminal activity, even in the form of opinion, are not constitutionally protected,” Davis wrote
The voting technology firm cheered these parts of Davis’ ruling in a statement on Friday.
“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.
Fox’s 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 many 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.
Fox Corporation chairman Rupert Murdoch 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 top executives privately trashed the conspiracy theories that were being spread on-air, according to internal text messages and emails revealed in court filings.
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. And 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.
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.
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