Will the $1.6 billion Fox News defamation lawsuit go to trial? A Delaware judge could decide soon

A Delaware Superior Court judge will decide in the coming weeks if the blockbuster $1.6 billion defamation lawsuit Dominion Voting Systems has lodged against Fox News and Fox Corporation will head to trial.

Judge Eric Davis heard oral arguments for summary judgment, which turned into a two-day hearing this week, on whether the lawsuit should go to trial April 17. Dominion and Fox each filed a motion for a summary judgment, asking the judge to make a decision on the case and avoid going to trial.

Davis said in the beginning moments of the hearing that he had not decided and he was looking for both sides to educate him on their arguments. At times, he did appear to be skeptical of arguments made by Fox lawyers. But Davis cautioned Wednesday as the hearing came to a close that how he asks questions is not indicative of how he will rule.

The judge plans to make a ruling well ahead of the scheduled trial.

A person walks past the Fox News Headquarters at the News Corporation building in New York City on March 9, 2023.
A person walks past the Fox News Headquarters at the News Corporation building in New York City on March 9, 2023.

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If it does move forward, it would be one of the most high-profile trials to take place in Delaware in recent memory. The outcome could have a massive and consequential financial blow to the country’s most-watched cable news network. The trial is expected to last about 6 weeks.

Dominion argued this week in Delaware that documents show how top Fox executives and hosts privately communicated that they did not believe then-President Donald Trump’s election fraud allegations yet continued to give airtime to these claims.

Fox lawyers insist the network and corporation are protected under the First Amendment, arguing that a “reasonable viewer” would understand that Fox hosts did not present these claims to be fact but rather allegations made by Trump associates.

The hearing came after a Fox News producer filed a lawsuit against her employer, claiming the network’s lawyers coerced her to provide misleading testimony in the defamation case.

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How did the case come about?

Following the 2020 presidential election, Trump and his allies began to claim without evidence that the election had been stolen –– despite Trump’s resounding defeat to Joe Biden.

Dominion, a private voting machine manufacturer, soon found itself in the crosshairs of these claims, in which Trump allies wrongly said the company conspired with Democrats to steal the election.

The company fought back in March 2021 when it filed a defamation lawsuit against Fox News and parent company Fox Corporation. Dominion has also filed similar lawsuits against the conservative news outlets OAN and Newsmax.

Subsequent court filings revealed a behind-the-curtain look inside Fox News in the wake of the 2020 presidential election. A Fox News spokesman said in statement that the organization views this lawsuit as an attack on the First Amendment.

"Despite the noise and confusion that Dominion has generated by presenting cherry-picked quotes without context, this case is ultimately about the First Amendment protections of the media’s absolute need to cover the news," the spokesman said.

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What did Dominion argue?

Dominion lawyers argued that Fox airing these false claims about Dominion voting machines was a “deliberate decision” that “went all the way up the chain of the command.”

Fox Corporation executives, including chairman Rupert Murdoch and his CEO son Lachlan, instructed Fox News after the 2020 election to “let the hosts run wild” with election conspiracies and disregarded attempts to fact-check, they said.

Fox did this, Dominion lawyers argued, out of fear that viewers were abandoning the network after it called Arizona for Biden on election night.

Dominion lawyers walked the judge through more than a dozen examples of what they say is false information that Fox presented to viewers as fact. They argued the network also gave frequent guests Sidney Powell and Rudy Giuliani, members of Trump’s legal team, a platform to repeatedly give inaccurate information.

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“When you make a defamatory statement that originates from someone else, you adopt it as your own,” said Dominion lawyer Rodney Smolla.

Dominion has to prove that Fox knowingly published false information about the voting machine company or recklessly disregarded information showing that the claims were not true. Lawyers, in part, pointed to the deposition of David Clark, a Fox News executive in charge of weekend programming.

Clark testified that he did not believe the election was rigged. Yet Dominion lawyers argued that their evidence shows Clark allowed hosts of shows he oversaw to book Powell and Giuliani as guests, even watching pre-tape footage that featured these claims.

“He watched it,” said Justin Nelson, Dominion lawyer. “He knew it. He let it go.”

Dominion also presented correspondence between Fox hosts and Fox Corporation executives that they say shows Fox knew these claims were not true. Rupert Murdoch acknowledged in his deposition for this case that Fox News hosts “endorsed” the false claims of the election being stolen. The media mogul said he could have done more to stop it but did not.

“Unlike every other single defamation case,” Nelson said, “we have in their own words the fact that they knew it was false.”

How did Fox respond?

Much of Fox’s argument focused on the idea of the “reasonable viewer.”

This viewer, said Fox lawyer Erin Murphy, understands that the network never reported that the statements on election fraud were true. Instead, Fox News hosts provided viewers with “true facts” about the allegations made by the president and his legal team.

Fox does not plan to defend that the allegations made about election fraud on its TV programs were true, lawyers said.

“We do not think that we are just scot-free simply because a guest said something rather than a host,” Murphy said. “What we resist is that Dominion’s position seems to be that we are automatically liable because a guest said something.”

At one point, the judge remarked there “seems to be a Dobbs problem,” referencing Lou Dobbs, a former Fox Business host. He was among the handful of well-known anchors – Maria Bartiromo, Jeanine Pirro, Tucker Carlson and Sean Hannity – whose statements are under scrutiny.

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Later, when looking at some of Dobbs’ tweets, Davis asked how Dobbs could be neutral when he featured “#MAGA or #AmericaFirst” hashtags. Murphy said these tweets were Dobbs promoting his show and that a viewer could decide for themselves if they thought the claims made by Powell, a frequent guest on his show, were credible.

Murphy also pointed to evidence she believed showed that Fox host Jeanine Pirro did not ignore concerns raised about these claims. The host, Murphy said, changed aspects of her opening monologue in a November show to better convey that these claims were not a statement of fact.

The Fox lawyer also pushed back on the idea that Fox corporation executives, including the Murdochs, were directly involved in coverage. Being aware of coverage, Murphy said, is not the same as participating.

Dominion wants to “punish” Fox News for sharing one of the most “pressing news stories” of the day, Murphy said.

This article originally appeared on USA TODAY: Fox News-Dominion Voting lawsuit: Will trial move forward in Delaware?