Global Courant 2023-04-16 18:55:26
Beginning Monday in a Delaware courtroom, Fox News executives and stars will have to answer for their role in spreading doubt over 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 must answer a specific question: Did Fox defame the voting machine company by airing fake stories alleging that the election was rigged against then-President Donald Trump, even so much on the network? privately doubted the false claims of Trump and his allies?
Yet the broader context emerges. The trial will test freedom of the press and the reputation of the conservative news source of choice. It will also highlight 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, along with founder Rupert Murdoch, are among those expected to testify in the coming weeks.
Barring a last-minute settlement, opening statements are scheduled for Monday.
“This is Christmas Eve for defamation scientists,” said RonNell Andersen Jones, a law professor at the University of Utah.
Fox News commentator Sean Hannity is seen in New York on March 16. A trial in Dominion Voting Systems’ defamation suit against Fox for making false allegations of fraud in the 2020 election begins Monday in Delaware. Hannity is expected to testify. (Evan Agostini/Invision/The Associated Press)
Some Fox employees privately disbelieved Trump’s claims
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.
A few rulings from Delaware Supreme Court Justice Eric Davis, who is hearing the case, 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 it will be for a jury to decide whether Fox acted with “genuine malice” — the legal standard — and, if so, what that’s worth financially.
Fox witnesses will likely testify that they thought the allegations against Dominion were newsworthy, but Davis made it clear that this isn’t a defamation defense — and he’ll make sure the jury knows that.
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.
Did Fox knowingly broadcast false claims?
“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,” he said.
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 person walks by Fox News headquarters in New York on April 12. (Yuki Iwamura/The Associated Press)
It is not clear whether that will affect the process. But it’s generally not wise for a judge to question whether your side is telling the truth at the beginning of a trial, especially when truth is central to the case, said Jones of the University of Utah.
The lawsuit essentially boils down to whether Dominion can prove that Fox acted with actual malice by putting something on the air knowing it knew it was false or by acting with a “reckless disregard” for whether it was true used to be.
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.
The jury will determine whether a powerful figure like Murdoch – who testified in a statement that he did not believe the election fraud allegations – had the clout to keep the allegations out of the blue.
“Credibility is always important in any case, 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.
LISTEN | Dominion Election Case Could Be the ‘Civil Lawsuit of the Century’:
Day 68:38Dominion election case could become the ‘civil lawsuit of the century,’ says Washington Post media critic
In the background of the January 6 commission hearings, a $1.6 billion defamation lawsuit against Fox News is growing into a very big deal. Dominion Voting Systems is accusing Fox of spreading false claims of election fraud that cast Dominion as the villain. This week, former Attorney General William Barr was subpoenaed by the court — a sign that things are “moving in a very serious direction,” according to Erik Wemple, a columnist and media critic for The Washington Post.
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 defamation lawsuit in New York. The Smartmatic case is not yet ready for trial, 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 revealed that Tucker Carlson told a friend that he passionately disliked Trump and couldn’t wait to move on.
Dominion can also look for excuses
How Fox viewers react is an open question. Fox has placed a near-total ban on discussing the lawsuit on its TV network or website.
“The real potential danger is if Fox viewers feel like they’ve been lied to. There’s a real downside to that,” said Charlie Sykes, founder of the Bulwark website and an MSNBC contributor.
Dominion Voting voting machines are displayed in a Torrance County warehouse during election equipment testing with local candidates and partisan officers in Estancia, NM, on Sept. 29, 2022. (Andres Leighton/The Associated Press)
There is little evidence that the case has changed Fox’s editorial direction or reduced viewership. 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 U.S. Capitol uprising based on tapes given to him by Kevin McCarthy, chairman of the U.S. House of Representatives.
Just because Fox hasn’t discussed the Dominion lawsuit on the air doesn’t mean his fans don’t know about it, said Tim Graham, director of media analysis at the conservative watchdog Media Research Center.
“There’s a certain amount of tribal response to this,” Graham said. “While all the other networks are excited about exposing text messages and emails, they see this as the liberal media’s latest attempt to undermine Fox News. There will be a rally around Rupert effect.”
The process is expected to last until the end of May.
