Dominion’s history-making defamation trial against Fox News over 2020 election lies kicks off in Delaware

CNN

By Oliver Darcy and Marshall Cohen, CNN

The high-stakes showdown between Dominion Voting Systems and Fox News finally commences in earnest Tuesday when the $1.6 billion defamation trial begins, shining a spotlight on Fox’s election denialism and the toxic role of its disinformation on American politics.

The trial, initially set to begin with opening statements on Monday, was abruptly delayed on Sunday evening, in an eleventh-hour twist that raised speculation of settlement talks, but ultimately failed to prevent the trial’s open.

If the 12 jurors side with Dominion and award a sum of money near what the voting technology company is asking for, it would represent one of the largest defamation defeats ever for a US media outlet. A Fox victory — after it limped into trial amid a series of legal setbacks — would be a major triumph for the network.

But regardless of who emerges the legal victor, the trial promises to be an agonizing affair for Fox News, with the network’s highest-ranking executives and most prominent hosts taking the stand to testify about the 2020 election lies that were promoted on its air.

For the next six-plus weeks, the center of the media world will run through Wilmington, Delaware.

“In the coming weeks, we will prove Fox spread lies causing enormous damage to Dominion. We look forward to trial,” a Dominion spokesperson said in a statement on the eve of trial.

Fox has defended its actions, saying in a statement, “Dominion’s lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights.”

Fox’s credibility hits all-time low

The case has already battered the reputation and credibility of Fox News, exposing the network as dishonest, having no regard for the most basic news ethics, and showing contempt for its sizable audience.

Private text messages and emails released as part of the case revealed that top executives simply didn’t believe the debunked conspiracy theories they were peddling on-air.

Fox Corporation chairman Rupert Murdoch, and prominent hosts like Tucker Carlson and Sean Hannity, knew former President Donald Trump’s lies about the election were wholly detached from reality, but leaned into the voter fraud theories on their shows. Other messages revealed that the handful of journalists at Fox News who did push back against Trump’s lies were disciplined afterward.

The communications also provided a window into Fox News in the wake of the 2020 election, when throngs of its viewers rebelled against it for accurately calling the election for then-candidate Joe Biden. Messages showed network personnel struggled to appease its angry election-denying viewers, with hosts like Carlson lamenting sowing doubt about the election, but conceding it was what viewers craved.

That is the heart of Dominion’s case. The company alleges that Fox News knew the lies it promoted about its technology were false, but that the channel allowed the lies to take hold on its air to protect its lucrative business. (Fox denies this.)

Historic fight over the First Amendment

Dominion will try to convince the jury that people at Fox News who were responsible for the 20 lie-filled broadcasts mentioned in the lawsuit knew at the time that they were peddling lies but did so anyway. That would be “actual malice,” a both high and necessary legal benchmark to win a defamation case in the US legal system.

Dominion can also prevail by proving that these figures inside Fox may not have intentionally promoted lies, but that they acted with a reckless disregard for the truth.

Fox News has contended it did nothing wrong. When Dominion first sued in 2021, the network said it was “proud” of its election coverage. It has argued that it both did not defame Dominion and that the $1.6 billion figure is wildly inflated. They have accused Dominion of cherry-picking internal Fox emails and texts to present a distorted narrative and gin up media coverage from Fox’s competitors.

Lawyers for Fox won’t be allowed to put forward many of the First Amendment defenses they were hoping to use, because the judge ruled that they didn’t apply here. One of the strongest remaining strategies could see Fox arguing that hosts like Lou Dobbs and Maria Bartiromo genuinely believed the unhinged conspiracy theories about the 2020 election that they then embraced on their programs.

Indeed, in Dobbs’ deposition for this case, he testified that he still believes the 2020 election was stolen from Trump.

Pretrial drama

Thus far, Fox News has faced an uphill battle in court, as the case careened toward trial.

Delaware Superior Court Judge Eric Davis, who is presiding over the case, has shown extreme skepticism in recent hearings toward some of the network’s legal theories and courtroom antics. In a series of pretrial rulings, Davis also took away several of Fox News’ key First Amendment defenses, barring them from being made to the jury and making it more difficult for the network to prevail at trial.

Even more alarming for Fox News, in recent days Davis has signaled he is no longer sure whether he can trust the network’s representations in court. Davis appointed a special master to probe whether Fox misled the court about Murdoch’s role at the network, and sanctioned Fox for withholding evidence from Dominion that he believed was “extremely relevant.”

Fox has said it never intentionally suppressed any evidence in the case. And, in a remarkable move, lawyers for the network sent an apology to the judge Friday, showing contrition and taking responsibility for the “misunderstanding” that led to the special master’s inquiry.

But even with these setbacks, Fox may still prevail. Juries are unpredictable, and the verdict must be unanimous. And Fox’s legal team is stacked with seasoned appellate attorneys who surely have their sights set on the Delaware Supreme Court, and maybe even the US Supreme Court, too.

Spin vs. reality

The inability to distort the truth and bend reality to its will puts Fox News in an unfamiliar position.

The network often sails through controversy by advancing dishonest narratives about its critics and assailing “the media.” Such tactics will not work in court, where Fox’s lawyers will be professionally obligated to tell the truth and won’t have the fact-free rein that its on-air personalities enjoy.

The outcome of the trial, however, is not likely to dramatically change the dishonest way in which Fox News operates. The channel is the profit engine in Murdoch’s media empire and its business model is dependent on feeding its viewership a steady stream of right-wing infotainment.

Even as this case has advanced forward in recent days, some top Fox News personalities such as Carlson have yet again shamelessly sowed doubt about legitimacy of the 2020 election.

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