Without citing a reason, the Delaware judge overseeing a voting machine company’s $1.6 billion libel lawsuit against Fox News announced late Sunday that it was delaying the start of the trial until Tuesday.
The trial, which has drawn international interest, was scheduled to begin Monday morning with jury selection and opening statements.
The case revolves around whether Fox defamed Dominion Voting Systems by spreading false claims that the company rigged the 2020 presidential election to prevent the re-election of former President Donald Trump. Records produced as part of the lawsuit show that many of the network’s hosts and executives did not believe the allegations, but made them anyway.
Representatives from Dominion and from the two entities it is suing – Fox News and its parent company, Fox Corp. – did not immediately return requests for comment on the delay. In his statement, Delaware Supreme Court Justice Eric Davis said only that the trial, including jury selection, would continue through Tuesday and that he would announce the delay in court on Monday.
That was when Fox News executives and the network’s star hosts would begin to answer their role in spreading doubt about the 2020 presidential election and creating the gaping wound that still exists in American democracy.
Jurors hearing the $1.6 billion lawsuit filed against Fox by Dominion Voting Systems should answer a specific question: Did Fox defame the voting machine company by spreading false stories alleging that the election was rigged against the then president Donald Trump, even so much at the network privately doubted the false claims pushed by Trump and his allies?
Yet the broader context emerges. A lawsuit would test freedom of the press and the reputation of the conservative news source of choice. It would also ease the flood of misinformation that contributed to the January 6, 2021 uprising at the U.S. Capitol and continues to fuel Trump’s hopes of returning to power in 2024.
Fox News stars Tucker Carlson and Sean Hannity and founder Rupert Murdoch are among those expected to testify.
Barring a settlement, opening statements are now scheduled for Tuesday.
“This is Christmas Eve for libel scholars,” said RonNell Andersen Jones, a law professor at the University of Utah.
If the lawsuit were a sporting event, Fox News would take the field on a losing streak, with key players injured and just alienating the referee. Preliminary court rulings and embarrassing revelations about the biggest names are hot on Fox’s heels.
Court documents released over the past two months show that Fox executives, producers and personalities privately disbelieved Trump’s claims of fraudulent elections. But Dominion says Fox News was afraid of alienating its audience from the truth, especially after many viewers were angry at the network’s decision to declare Democrat Joe Biden the winner in Arizona on election night in November 2020.
Some of the judge’s rulings have eased Dominion’s path. In a preliminary injunction, Davis said it was “CRYSTALLY CLEAR” that the allegations of fraud against the company were false. That means no probation needs to be spent refuting it at a time when millions of Republicans continue to doubt the 2020 results.
Davis said it’s also clear that Dominion’s reputation has been damaged, but that it’s up to a jury to decide whether Fox acted with “actual malice” — the legal standard — and, if so, what that’s worth financially.
Fox witnesses would likely testify that they thought the allegations against Dominion were newsworthy, but Davis made it clear that this is not a defamation defense.
New York law protects news outlets from defamation of speech. But Davis methodically went through 20 different times on Fox as allegations against Dominion were discussed, ruling that they were all considered all or part of them to be statements of fact, and fair game for a possible libel finding.
“A lawsuit is a bit like hitting a home run,” said Cary Coglianese, a law professor at the University of Pennsylvania. “You have to go through all the bases to get there.” The judge’s rulings “basically give Dominion a spot at third base, and all they have to do is come home to win it.”
Both Fox and Dominion are based in Delaware, although Fox News is headquartered in New York and Dominion is in Denver.
Fox angered Davis last week when the judge said the network’s lawyers had delayed evidence production and were unwilling to reveal Murdoch’s role at Fox News. A Fox attorney, Blake Rohrbacher, sent a letter of apology to Davis on Friday, saying it was a misunderstanding and not intended to mislead.
It’s not clear if that would affect any process. But it’s generally not wise to let a judge question whether your side is telling the truth at the beginning of a trial, especially when the truth is the central point of the case, Jones said.
The lawsuit essentially boils down to whether Dominion can prove that Fox acted with actual malice by putting something on the air knowing it was false or acting with a “reckless disregard” for whether it was true. In most libel cases, that’s the hardest hurdle for plaintiffs to get past.
Dominion can cite many examples where Fox characters disbelieved the allegations of Trump allies such as Sidney Powell and Rudolph Giuliani. But Fox says many of those infidels were unable to decide when to make those accusations.
“We think it’s essential that they connect those dots,” said Fox attorney Erin Murphy.
If the case goes to trial, the jury will determine whether a powerful figure like Murdoch – who testified in a statement that he did not believe the allegations of voter fraud – had the clout to keep the allegations out of the blue.
“In any case, credibility is always important in any process. But in this case, it becomes very important,” said Jane Kirtley, director of the Silha Center for the Study of Media Ethics and the Law at the University of Minnesota.
Kirtley worries that the lawsuit will eventually go to the U.S. Supreme Court, which could use it as a pretext to challenge the true standard of malice established in a 1964 New York Times Co. decision. v. Sullivan, to weaken. According to her, that would be disastrous for journalists.
Dominion’s lawsuit is being closely watched by another voice technology company with a separate but similar case against Fox News. Florida-based Smartmatic has looked at some of the rulings and evidence in the Dominion case to try to bolster its own $2.7 billion libel lawsuit in New York. The Smartmatic case isn’t ready for trial yet, but it survived Fox News’ attempt to throw it out.
Many pundits are surprised that Fox and Dominion have not reached an out-of-court settlement, although they could do so at any time. There is probably a wide financial gap. In court documents, Fox claims the $1.6 billion in damages is a wild overestimate.
Dominion’s motivation may also be to embarrass Fox to the max with a peek into the network’s post-election internal communications. Text messages from January 2021 showed Carlson telling a friend that he passionately disliked Trump and couldn’t wait to move on.
Dominion can also look for excuses.
The lawsuit has had no apparent effect on Fox News viewership; it remains the top-rated cable network. And there’s little indication that the case has changed Fox’s editorial direction. Fox has embraced Trump again in recent weeks following the indictment of the former president by a Manhattan grand jury, and Carlson presented an alternate history of the Capitol riot based on tapes given to him by House Speaker Kevin McCarthy, R- Calif.
