A judge in Delaware has ordered a jury trial in Dominion Voting Systems’ blockbuster lawsuit against Fox News, setting the stage for one of the most consequential defamation decisions against an American media company in decades.
Lawyers for Fox and Dominion faced off in court during a two-day hearing for summary judgment last week, with each side unsuccessfully arguing the court should rule in their favor and forgo a jury trial that is expected to span weeks and could further bring to light internal discussions at the network following the 2020 election.
Dominion is suing Fox for $1.6 billion in connection with what it alleges was the network’s airing of false information about the company’s software, claims promoted by former President Trump’s associates and allies after the election.
Delaware Superior Court Judge Eric Davis rejected Fox’s attempt to throw out the suit ahead of trial, and he ruled that Dominion has proven the first elements of their defamation claim: namely, that the network’s statements about Dominion and the 2020 election were false.
But he ruled that a jury must decide whether Fox operated with actual malice.
“The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear than none of the Statements relating to Dominion about the 2020 election are true. Therefore, the Court will grant summary judgment in favor of Dominion on the element of falsity,” the ruling read.
The network’s lawyers have defended the conservative cable news company on First Amendment grounds, saying the claims being made by Trump and his allies were newsworthy.
“Even if the neutral report privilege did apply, the evidence does not support that FNN conducted good-faith, disinterested reporting,” Davis wrote, also rejecting Fox’s other First Amendment defenses.
The outcome of the closely watched case — which has already produced a number of embarrassing headlines for the nation’s cable news leader — is certain to have major implications for Fox’s future and media law more generally.
“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,” Dominion said in a statement to The Hill on Friday. “We look forward to going to trial.”
Fox said in its own statement that “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,” the network said.
The process of discovery has been an embarrassing one for the nation’s top-rated network, with a number of private communications and depositions by leading hosts and executives at the network in the post-election period brought to light.
Internal text messages and emails from top hosts at Fox showed them throwing cold water on Trump’s false claims of electoral fraud but worrying how fact checking those claims might hurt their standing with their audience.
In one email surfaced as part of the lawsuit Rupert Murdoch, owner and co-chairman of Fox Corp., worried to Fox News Media CEO Suzanne Scott that top hosts Sean Hannity and Laura Ingraham “went too far” in endorsing former President Trump’s false claims about the 2020 election, fillings from Dominion showed.
“Maybe Sean and Laura went too far,” Murdoch wrote to Scott. “All very well for Sean to tell you he was in despair about Trump but what did he tell his viewers?”
Davis ruled there was no factual dispute that all of the statements that Dominion is suing over are false.
“Dominion has offered proof demonstrating that the allegations were substantially false,” Davis wrote. “Comparing the allegations at issue to the truth, the truth would have likely had a different outcome on the average viewer, as the statements at issue were dramatically different than the truth.”
“In fact, although it cannot be attributed directly to Fox’s statements, it is noteworthy that some Americans still believe the election was rigged,” the judge added.
A jury trial could force several of Fox’s biggest stars onto the witness stand, with lawyers for both sides last week expressing a desire to call hosts like Tucker Carlson, Hannity, Lou Dobbs, Bret Baier, Maria Bartiromo and Jeanine Pirro.
Fox’s attorneys and spokespeople have accused the voting systems company of “cherry picking” quotes from its employees to drum up media attention around its case.
Neither side has shown any interest publicly in settling the case, which is unusual given the high financial stakes involved and public relations lashing an open court proceeding would pose to the country’s top cable news company.
Davis’ judgement also came on the heels of a separate lawsuit filed by a former top producer at Fox who alleges she was coached in “a coercive and intimidating manner” to protect executives and on-air talent as part of the Dominion suit.
“They destroy people,” Abby Grossberg, the producer who worked for Maria Bartiromo, Tucker Carlson and other top hosts at the network, said during a recent interview with NBC News. “I realized that the answers that they wanted me to say were putting me in a very vulnerable position to be the company scapegoat.”
Fox has denied Grossberg’s allegations, saying in a statement this week “the assertion that Ms. Grossberg was coached or intimidated into being dishonest during her Dominion deposition is patently false.
“We will continue to vigorously defend Fox against her unmeritorious legal claims, which are riddled with false allegations against the network and our employees,” the network said.
In order to find Fox liable for the damages it seeks, Dominion will have to prove to a jury that the network acted with actual malice, or reckless disregard for the truth, in publishing Trump’s election claims, which Davis, in his summary judgement opinion, determined were false.
A jury trial in the case is slated to begin April 17.