Trial Of The Century: Dominion Voting Systems v. Fox News Network

The “trial of the century,” Dominion Voting Systems v. Fox News Network, begins next week with jury selection. A Delaware judge has set jury selection for April 13 and the trial to begin in April 17 in Delaware Superior Court in Wilmington, assuming that the sides don’t reach a financial settlement in the meantime.

The New York Times reports, Fox News Suffers Major Setback in Defamation Case:

Fox News suffered a significant setback on Friday in its defense against a $1.6 billion defamation lawsuit that claims it lied about voter fraud in the 2020 election.

A judge in Delaware Superior Court ruled in the case, brought by Dominion Voting Systems, was strong enough to conclude that Fox hosts and guests had repeatedly made false claims about Dominion machines and their supposed role in a fictitious plot to steal the election from President Donald J. Trump.

“The evidence developed in this civil proceeding,” Judge Eric M. Davis wrote, demonstrates that it “is CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true.”

Davis ruled that the statements Dominion had challenged constitute defamation “per se” under New York law. That means Dominion does not have to prove damages to establish liability by Fox.

“The calculation of damages is a question for the jury,” Davis said.

Judge Davis said the case would proceed to trial, for a jury to weigh whether Fox spread false claims about Dominion while knowing that they were untrue, and to determine any damages. The trial is expected to begin April 17.

He rejected much of the heart of Fox’s defense: that the First Amendment protected the statements made on its air alleging that the election had somehow been stolen. Fox has argued that it was merely reporting on allegations of voter fraud as inherently newsworthy and that any statements its hosts made about supposed fraud were covered under the Constitution as opinion.

“It appears oxymoronic to call the statements ‘opinions’ while also asserting the statements are newsworthy allegations and/or substantially accurate reports of official proceedings,” Judge Davis said.

For example, in a “Lou Dobbs Tonight” broadcast on Nov. 24, 2020, Mr. Dobbs said: “I think many Americans have given no thought to electoral fraud that would be perpetrated through electronic voting; that is, these machines, these electronic voting companies including Dominion, prominently Dominion, at least in the suspicions of a lot of Americans.”

The judge said that statement was asserting a fact, rather than an opinion, about Dominion.

Under defamation law, Dominion must prove that Fox either knowingly spread false information or did so with reckless disregard for the truth, meaning that it had reason to believe that the information it broadcast was false.

Numerous legal experts have said that Dominion has presented ample evidence that Fox hosts and producers were aware of what they were doing.

RonNell Andersen Jones, a law professor and First Amendment scholar at the University of Utah’s S.J. Quinney College of Law, said the judge had signaled that he disagreed with many of Fox’s arguments.

“The case will head to the jury with several of the key elements already decided in Dominion’s favor,” Ms. Anderson Jones said.

Dominion, in a statement, said: “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 spokeswoman for Fox said the 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,” she added.

Pure, unadulterated bullshit! As Eugene Robinson of the Washington Post explains Fox is not a news network but a propaganda outlet:

“Fox News” is a misnomer. Rupert Murdoch’s cable network isn’t really a news organization. It just plays one on television — and deserves to lose the $1.6 billion Dominion Voting Systems defamation lawsuit that soon will go to trial.

[W]hat Fox did to Dominion was not journalism. It was more like a mugging.

* * *
I repeat: This is not journalism.

If your practice is to tell people what they want to hear rather than what you know to be true, you are not a journalist. You are an infotainer or a propagandist. Perhaps both.

I don’t believe this case threatens the protections accorded to journalists. My only worry is that some people might get the idea that actual news organizations think and act like Fox. We do not.

In Friday’s decision, Judge Davis said damages, if they were awarded to Dominion, would be calculated by the jury. Lawyers for Fox pushed back on Dominion’s claim for $1.6 billion in previous hearings, arguing that the company had overstated its valuation and failed to show it suffered any loss of business.

Fox has argued that Fox Corp, the parent company of Fox News, was not involved in the broadcasting of the allegedly defamatory statements. In the decision, the judge left that question up to a jury.

The case is the highest profile so far to test whether allies of former President Donald J. Trump would be held accountable for spreading falsehoods about the 2020 election. The prosecutions of those who were at the Capitol on Jan. 6, 2021, have mostly been focused on petty criminals and low-level agitators.

Major revelations have been buried in the suit’s filings. Hundreds of pages of internal emails and messages in the weeks around the 2020 election, some of which were redacted, showed that many Fox executives and hosts did not believe the false claims of voter fraud they were broadcasting and made derogatory comments about Mr. Trump and his legal advisers.

Tucker Carlson, the popular prime-time host, described Mr. Trump as “a demonic force, a destroyer” in a text with his producer. In a separate message to the host Laura Ingraham, Mr. Carlson said Sidney Powell, Mr. Trump’s lawyer, was lying about the fraud claims, but “our viewers are good people and they believe it.”

The trove of messages also revealed the panic inside Fox News in the weeks after the election. Leaders including Suzanne Scott, the network’s chief executive, and Rupert Murdoch, the chairman of its parent company, fretted about angering viewers who felt the network had betrayed Mr. Trump when it correctly called Arizona for Joseph R. Biden Jr.

As some of those viewers left for more right-wing channels like Newsmax in the days after the election, Ms. Scott told Mr. Murdoch in an email that she intended to “pivot but keep the audience who loves us and trusts us.” She added: “We need to make sure they know we aren’t abandoning them and still champions for them.”

Mr. Murdoch acknowledged in his deposition that some Fox News hosts had “endorsed” the false fraud claims. He added that he “would have liked us to be stronger in denouncing it in hindsight.”

The suit has also had a recent complicating factor: A former Fox News producer filed her own lawsuits against the company this month, claiming that the network’s lawyers coerced her into giving a misleading testimony in the Dominion case. Fox News fired the producer, Abby Grossberg, who worked for the host Maria Bartiromo and Mr. Carlson, after she filed the complaints.

On Monday, Ms. Grossberg’s lawyers filed her errata sheet, which witnesses use to correct mistakes in their depositions. She revised her comments to say she did not trust the producers at Fox with whom she worked because they were “activists, not journalists, and impose their political agendas on the programming.”

Judge Davis’s ruling sets the stage for one of the most consequential media trials in recent history, with the possibility that Fox executives and hosts could be called to testify in person.

CNN updates, Tucker Carlson, Sean Hannity among prominent Fox hosts, execs set to take stand at defamation trial:

Fox News said in a court filing Tuesday that it plans to put some of its most prominent executives and TV hosts on the witness stand to testify as part of its defense in the Dominion defamation trial.

The right-wing network told the judge it “intends to make available” these people to testify in-person. Fox will call these witnesses as part of their defense, but Dominion also wants to question them as part of their case.

The list includes Fox TV hosts Tucker Carlson, Maria Bartiromo, Sean Hannity, and Bret Baier, as well as Fox News CEO Suzanne Scott and President Jay Wallace.

The filing came amid still-ongoing legal wrangling between the parties about who can be called to testify. There [was] a hearing slated for Wednesday that will likely address some of these outstanding issues. (For instance, Fox is resisting Dominion’s effort to compel testimony from Rupert and Lachlan Murdoch.)

The Associated Press updates, Jury in defamation suit against Fox won’t hear about Jan. 6:

“I don’t see Jan. 6 as relevant in this case,” Superior Court Judge Eric Davis said during a hearing Wednesday. “I know that probably shocks everyone.”

Davis noted that only one of the challenged programs aired after Jan. 6, and that it contained no mention of the uprising. That show was a Jan. 26 Tucker Carlson program in which My Pillow CEO Mike Lindell complained that he was the victim of “cancel culture” and asserted that he had found evidence of “machine fraud.”

“What parties were thinking in January is not very relevant, if at all, to what happened in November and December,” the judge said, adding that allowing any testimony about Jan. 6 could result in unfair prejudice to Fox.

“Fox is not the cause of Jan. 6 in its relation to Dominion,” Davis added. “I do think that’s a really big issue that has to be stayed away from.”

Dominion alleged in its complaint that some Fox viewers believed the lies about the company “with such devotion that they took the fight from social media to the United States Capitol and at rallies across the country to #StopTheSteal, inflicting violence, terror, and death along the way.”

In another ruling, Davis denied requests from Dominion attorneys to compel certain executives for Fox News and Fox Corp., including several producers, to testify in person at the trial.

Under Delaware law, Davis can compel officers, directors and managing agents of a Delaware corporation to appear in court to testify. He has already indicated that he can compel court appearances by Fox Corp. chairman Rupert Murdoch, CEO Lachlan Murdoch, director Paul Ryan, and Viet Dinh, chief legal and policy officer. Fox attorneys have nevertheless argued that 92-year-old Rupert Murdoch should not be forced to testify in person after having been deposed for seven hours.

CNN adds: Dominion can force Murdochs to testify at Fox News defamation trial, judge says:

Delaware Superior Court Judge Eric Davis said at a hearing that if Dominion subpoenas the Murdochs to testify in-person, he would not quash those subpoenas, and the Murdochs would need to show up to the courthouse.

“They are relevant to the case… if Dominion wants to bring them live, they need to issue a trial subpoena, and I would not quash it,” Davis said. He added that that “it would be my discretion that they come” to testify in-person at the trial, which is scheduled to begin later this month in Wilmington, Delaware.

“Both parties have made these witnesses very relevant,” Davis added.

Meanwhile, Dominion asked Davis to compel live testimony of six other Fox officials, arguing that their high-level positions and discretionary acts made them “managing agents” for the defendants. The judge said he could compel the appearance only of Tom Lowell, senior executive vice president and managing editor for both Fox News and Fox Business. In doing so, he noted that Lowell had previously been chosen by Fox News to be deposed as a representative of the company.

Dominion was unsuccessful in seeking to compel live testimony from Fox officials including Jerry Andrews, executive producer of the Justice with Judge Jeanine Pirro show, and Gary Schreier, senior vice president of programming for Fox Business. They also sought to force live testimony from Irena Briganti senior vice president of corporate communications for Fox News Media; Ron Mitchell, vice president of primetime programming and analytics, and Raj Shah, a senior vice president at Fox Corp. who is responsible for “brand protection.”

Davis refused to force those officials to travel to Delaware, but noted that Dominion could still seek to introduce their testimony through depositions, or even remotely through Zoom.

The judge ended the hearing by encouraging attorneys to make final decisions on whom they plan to call as live witnesses, so that court personnel can begin making any necessary security preparations.

Delaware does not permit cameras in the courtroom, but an audio or video feed of the trial can be made available. I have not found an order regarding this.