The pretrial maneuverings in the legal case brought by the Dominion voting company against Fox News are over and Delaware Superior Court Judge Eric Davis has ordered that it go to trial. Both sides had petitioned the judge to grant a summary judgment in its favor without a trial. In defamation cases against media organizations, the person claiming injury has to show that the statements made were both false and malicious, in that the speaker knew they were false and yet made them with a reckless disregard for the truth. (The judge’s ruling can be read here.)
Fox News said that when reporting the lies about Dominion machines changing the results to enable Joe Biden to win, it was merely exercising its First Amendment right to cover the news. Dominion said that all the internal communications that it had obtained during the discovery process showed conclusively that Fox News did not believe any of the allegations that its on-air personalities were saying and that hence it amounted to reckless and malicious behavior and that the judge should grant a summary judgment in its favor.
In his ruling, Davis did give Dominion a summary judgment on the falsity question, saying that: “The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that 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.” (Italics and boldface are in the original.)
But he said that the question of malice had to be decided by a jury. This means that during the trial, Fox cannot defend its statements on the basis that they may be true.
In a statement provided to the Guardian, Dominion applauded the decision.
“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,” they wrote. “We look forward to going to trial.”
Unless Fox and Dominion decide to settle the case before trial, jury selection will begin on 13 April and the trial, due to begin on 17 April, is scheduled to last about six weeks. Prominent Fox News anchors and executives are expected to appear for in-person testimony.
…Erin Murphy, a lawyer representing Fox, said in court recently that the network cannot be held liable because it was merely airing allegations from representatives of the sitting president.
But the judge on Friday rejected that argument. “Fox News Network is not a passive entity,” he wrote. “Fox News Network controls what is broadcast on its various networks.”
This case looks bad for Fox, given the voluminous material that has emerged about how pretty much everyone in the organization knew that the statements were false but still kept repeating them because they were worried that by not reporting them, they would lose their fanatical audience. The judge’s summary judgment sharply limits the scope of the defenses that Fox can present at trial.
In his 130-page ruling, Davis dismantled several of Fox News’ potential trial defenses, dealing a significant blow to the network. On the whole, these findings from Davis take away several key arguments that Fox could’ve presented to the jury, making it harder for them to prevail at trial.
Davis ruled that Fox News can’t invoke the “neutral report privilege,” which protects journalists who neutrally pass along newsworthy allegations in an unbiased fashion. Dominion had argued that Fox News hosts essentially took a side while covering the fallout of the 2020 election, by throwing their weight behind the false idea that the results were illegitimate, and Dominion was to blame.
“The evidence does not support that (Fox News) conducted good-faith, disinterested reporting,” Davis wrote. “(Fox News’) failure to reveal extensive contradicting evidence from the public sphere and Dominion itself indicates that its reporting was not disinterested.”
The judge also blocked Fox News from using the “fair report privilege” with the jury. That legal doctrine protects journalists who report on what is being said at official proceedings, like congressional hearings, or on allegations being levied in court filings, like in a civil lawsuit.
This case promises to have great interest especially when all the Fox people are under cross-examination by Dominion’s lawyers. With such a weak case and the great risk of embarrassment in addition to financial hurt, Fox News may try to settle before the trial but I am not sure what they can offer Dominion that will be attractive to them while at the same time not infuriating the rabid Trumpists who have been convinced by Fox that Dominion is in cahoots with George Soros and the dead Hugo Chavez.
Meanwhile, Dominion’s cases against Rudy Giuliani and Sydney Powell are still waiting trial.
Dominion filed a $1.3 billion defamation lawsuit against Powell in January 2021, citing her repeated claims that the company changed votes for Trump to votes for Biden. Dominion also filed a $1.3 billion defamation lawsuit against Giuliani the same month.
The lawsuits have been ongoing for more than a year, and Court Listener shows the cases are still open. A March scheduling order from the federal district court shows a series of deadlines for discovery and pre-trial motions extending into fall 2023.
In August 2021, the district court denied motions from both Powell and Giuliani to dismiss the cases.
Powell has largely disappeared from sight while Giuliani can still be found on rightwing media bloviating away.
But the judge on Friday rejected that argument. “Fox News Network is not a passive entity,” he wrote. “Fox News Network controls what is broadcast on its various networks.”
Bam!! It’s not just Faux saying what others were saying -- they were saying it too.
@MattG:
The ruling also displaces a “just following orders” defence, since FOX does not take orders from the president. It may do what the president wants, but only if it wants to do so for its own reasons (see how they treat Biden, for instance). However the portion you’re referring to is primarily displacing the defence that they were simply repeating the words of newsworthy people. You don’t have to repeat everything an otherwise newsworthy person says. And FOX doesn’t. Therefore it’s at least possible that they could commit defamation, and in this case the evidence is sufficiently overwhelming that to let them use that defence would be unfair as a matter of law.
@Mano
The judge also found that the statements would be defamation per se if they constitute defamation.
This means that there’s another aspect of this dustup that does not need to be decided by a jury: whether or not damages were incurred.
Since “per se” defamation can trigger punitive damages, a person unable to prove a specific dollar amount of damages can still sue for defamation per se, and then during the damage phase argue for high punitive damages when they can’t bring receipts.
Now, Dominion can (and will!) bring receipts to the damage phase, and the extent of their economic damages will also be used by the damage-phase jury to get a general idea of what magnitude of punitive damages might be in order. But this shortens the trial by relieving them of having to bring (and argue over) receipts during the first (fact-finding/responsibility determining) phase of the trial.
So the entire focus of the trial will be on just one or two questions: did FOX know that they were airing lies? And if not, were they “acting with reckless disregard to the truth” which in layman’s terms could be reframed, “were they willfully blind?” (Unfortunately in legal circles willfully blind has other meanings so it can’t just be swamped in when we’re talking the technical findings of the court, but it’s still useful for a general audience.)
The e-mails that have been released so far would seem to make things very, very difficult for FOX, but we shall see.
I would be surprised if there have not been negotiations over a settlement yet. The Fox lawyers can read the emails also and would want to avoid any of this being made public. Even if the Fox lawyers thought they could do better in court then they have it was inevitable that some of the evidence and testimony would made public during the case and it makes Fox look very bad. The hold up is not likely over money, Fox is probably offering them a huge pile. The problem would be what goes along with the money, Dominion isn’t going to settle for a vague apology but Fox doesn’t want to make any real apology or commit to not talking about Dominion.
From the beginning in this case I have wondered at what point, if at all, Fox will attempt to make the case to the juiry that Dominion was never their target. Agreed, that will be a stretch, but if they can convince even a few jurors that Dominion was collateral damage, they might get a hung jury.
The other factor on the periphery will be how many Trump supporters will be hiding in plain sight in the jury pool and how many of them get to actually take a seat in the jury box. This factor will also play a role in the pending case in New York and any other future jury trials involving the former president.