Wilmington, Del. — Fox News and Dominion Voting Systems are set to do battle in a Delaware courtroom this week as one of the most closely watched defamation cases brought against an American media company in decades gets underway.
The outcome of the blockbuster case, which stems from the network’s coverage of the 2020 election and former President Trump’s false claims that voter fraud kept him from a second term, is widely seen as a precedent-setting moment for defamation law and could severely alter the financial and reputational health of the country’s largest cable news company.
Legal experts have warned Fox could be on shaky legal ground, while media observers say this month’s trial is a seminal moment for the network’s brand and relationship with its massive, largely conservative audience.
“It’s potentially the most important defamation case in generations,” said RonNell Andersen Jones, a law professor at the University of Utah who specializes in media law. “Partially, this is because it involves very high stakes for two very important entities. That in and of itself makes it important. But beyond that, it sits at the intersection of some of the most significant constitutional, social and political debates of our time.”
A last-second twist in the high-profile legal saga came late Sunday, when Delaware Superior Court Judge Eric Davis announced the start of the trial would be delayed by 24 hours, amid reports of intensifying settlement talks between the two sides.
Yet during a hearing on Monday, Davis made no mention of any settlement and said it was “not unusual” for such a delay, saying it was his intention to seat a jury and begin opening arguments Tuesday.
Dominion initially sued Fox in 2021, seeking $1.6 billion in damages, contending the network knowingly aired false information about the voting machine company’s software that was being promoted by Trump and his allies.
Internal communications and depositions given to Dominion’s lawyers in recent months show top hosts and executives at Fox casting doubt internally on Trump’s claims while worrying over how fact checks might alienate the network’s audience.
“In the coming weeks, we will prove Fox spread lies causing enormous damage to Dominion,” the company said in a recent statement to The Hill. “We look forward to going to trial.”
Fox has argued the allegations made by Trump and his associates were newsworthy and it had a journalistic duty to present them to its audience — the widest in cable television.
“Dominion’s lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights,” a spokesperson for the network told The Hill. “While Dominion has pushed irrelevant and misleading information to generate headlines, Fox News remains steadfast in protecting the rights of a free press, given a verdict for Dominion and its private equity owners would have grave consequences for the entire journalism profession.”
Dominion’s lawsuit focuses on a number of claims made by Trump allies on the network, including wild statements made by attorney Sidney Powell and others that Dominion had used software “at the direction” of former Venezuelan President Hugo Chavez to swing the election against Trump.
Davis has already ruled that the statements in question were false. He has also rejected Fox’s attempts to throw out Dominion’s lawsuit ahead of bringing the case before a jury based on First Amendment privileges.
But now, Dominion must prove to a jury that Fox acted with “actual malice,” meaning it knowingly told lies or recklessly disregarded the truth in its broadcasts.
“Dominion has a strong case in spite of the substantial protections the Supreme Court has given to the press,” said John Culhane, a professor of constitutional law at Delaware Law School. “So now the only question is whether they were made with ‘actual malice.’ The documents unearthed during the pre-trial phase of the case make a strong argument that Fox knew—or at least acted with reckless disregard in not knowing— that the statements made on air were false.”
The revelations from the lawsuit so far have already created a smattering of embarrassing headlines for the cable network. Top host Tucker Carlson privately said in text messages that he hated Trump “passionately.” Carlson and fellow prime time host Sean Hannity discussed getting Fox reporters fired for fact checking Trump. And Fox’s top talent is shown in text messages privately insulting Powell over the claims at the center of the suit.
Still, Fox’s defenders say, embarrassing revelations about internal strife at the network do not necessarily prove Fox defamed Dominion.
“Conservatives shouldn’t try to weaken the actual-malice standard. For the foreseeable future, we will likely be on the wrong side of the culture-setting consensus,” former attorney general William Barr wrote in a recent op-ed in The Wall Street Journal, which is also owned like Fox by Rupert Murdoch.
Davis indicated during a recent pre-trial conference that he would not stop Dominion from calling Murdoch to testify as a live in-person witness, potentially setting the stage for what would be a dramatic and unprecedented moment.
Before Sunday night’s surprise delay, neither company had signaled any interest publicly in settling the case, an unusual wrinkle given the high stakes at play.
“For almost every defamation suit involving the media in the past, betting on settlement is usually a quite strong wager,” said Andersen Jones. “But this case is a unique one, and I think they might expect that if Fox was going to settle this case, it would have been in its best interest to have done so before this trove of evidence.”
Jurors will examine 17 Fox News broadcasts and three tweets from host Lou Dobbs, spanning from the day after most major media outlets projected Joe Biden as president-elect to three days before his inauguration.
Many of the statements in question revolve around interviews Fox hosts conducted with Rudy Giuliani and Powell, who helped lead the then-president’s legal strategy following the election.
Despite the intensifying press coverage surrounding the case, Fox’s reputation with its audience appears intact.
Nielsen Media Research figures show the network’s ratings have held steady. During the week of February 27 to March 5, for example, Fox notched 100 straight weeks as the top cable news network in total day with viewers in the advertiser-coveted 25-54 age demographic.
Fox purchased a full-page ad in the New York Times that ran Monday, citing a recent YouGov poll which showed 41 percent of respondents listed Fox as the news source they trusted most. Last month, Jeff Collins, executive vice president of advertising sales for Fox News Media, said during an interview with Variety that the media company has “not had one client cancel, pause or even reduce spending” because of the lawsuit.
“A win for Dominion may result in a stiff financial penalty for Fox News, even a public admission of guilt, but it probably will not drive its loyal audience away because most of its viewers believe the election was stolen,” said Joe Peyronnin, a former broadcast news executive.
Fox’s attorneys have separately cast doubt on Dominion’s motives in arguing the company’s financials show it did not suffer losses as a result of the statements made on the network’s air.
In a new court filing made over the weekend, Fox’s attorneys pointed to an April 14 e-mail they received from Dominion’s legal team saying the company would not seek to have the jury consider the full profit damages it had previously alleged in its initial suit, adding that Dominion was “knocking more than half a billion dollars off the damages claimed in its complaint.”
“Dominion could not possibly suffer damages in that amount,” Fox’s attorneys wrote in an earlier court filing of the $1.6 billion in damages the voting systems provider sued for. “Let alone suffer such damages because of a single press outlet’s coverage of a story that was reported by media throughout the world.”
The long-term ramifications for Fox News are somewhat unclear, particularly if there is no settlement.
“This is significant because virtually all cases of this type settle,” said Stuart Brotman, a longtime business and communications attorney. “People watch Fox for a variety of reasons. It remains to be seen, even if Fox News was found liable, whether that would affect its reputation with Fox News viewers.”
