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Judge undercuts key Fox News defense as he sends Dominion suit to trial
By
The Washington Post April 1, 2023
Sarah Ellison, Paul Farhi, Jeremy Barr
The Washington Post April 1, 2023
A Fox logo is displayed on the News Corp. building on Jan. 25, 2023, in New York. (Michael M. Santiago/Getty Images/TNS)
A judge undercut key arguments in Fox News’s defense against a $1.6 billion defamation suit Friday, ruling the network cannot dispute that it aired false, harmful statements about an election-technology company when the case goes to trial next month.
The decision by Delaware Superior Court Judge Eric M. Davis to reject requests from Fox News and parent company Fox Corporation to dismiss the case had been widely anticipated.
But legal experts said the specific ruling was a blow for Fox - and an encouraging sign going into trial for Dominion Voting Systems, which argues that Fox unfairly smeared it with wild allegations about its role in the 2020 election.
“This is a disastrous decision for Fox,” said Jonathan Peters, a media law professor at the University of Georgia. “The case isn’t over, no, with the trial on the way and the likelihood of appeals, but going forward I’d much rather have Dominion’s arguments.”
In his ruling, Davis determined that the conservative cable-news network had undeniably broadcast falsehoods when it allowed allies of Donald Trump to float debunked claims about Dominion supposedly rigging voting machines to boost Joe Biden.
However, Davis said he will leave it to a jury to decide whether Fox knew the statements were false when they aired them or acted recklessly in doing so - the “actual malice” standard required to prove a case of defamation.
Still, the ruling means that the case goes to the jury with other key elements already decided in Dominion’s favor, said RonNell Andersen Jones, a professor and First Amendment scholar at the University of Utah law school.
For example, Davis’s ruling asserts that the false statements - such as the claim that Dominion was created in Venezuela to rig elections for socialist leader Hugo Chávez - harmed the company’s reputation, meaning that the impact on Dominion will not have to be debated at trial.
“The jury will be left to tussle with only the question of how responsible Fox Corporation is for the production and dissemination of the statements [aired on Fox News], and the question of actual malice, along with the fight over damages,” Andersen Jones said.
“The checklist of things that Dominion has to prove in order to win the case has just gotten a lot shorter,” said Sonja West, a law professor at the University of Georgia.
The ruling also knocks down a key pillar of Fox’s defense - that it was simply reporting on newsworthy statements from public figures, in this case a sitting president and his advisers. Davis wrote that Fox undermined this line of defense by failing to also report statements from government officials and the company debunking claims of fraud.
Davis also rejected Fox’s argument that claims of electoral fraud were defensible because they represented the opinion of the hosts and guests on its airwaves. “It appears oxymoronic to call the statements ‘opinions’ while also asserting the statements are newsworthy allegations and/or substantially accurate reports of official proceedings,” he wrote.
Peters, of the University of Georgia, noted that Davis also ruled that the jury can determine damages, “meaning there really could be an award exceeding $1 billion,” he said.
“I’ve thought for a while that this case could reshape the conservative media landscape,” he added, “and that seems even more possible today.”
Dominion said in a statement that it is “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.”
In its own statement, Fox said that the case “is and always has been about the First Amendment protections of the media’s absolute right to cover the news,” adding that the network “will continue to fiercely advocate for the rights of free speech and a free press as we move into the next phase of these proceedings.”
This triggered another statement from Dominion, arguing that Davis’s ruling “rejected Fox’s First Amendment defense and held that Dominion’s lawsuit is consistent with the First Amendment.”
Davis’s decision to greenlight the case may increase the pressure on Fox to seek a settlement with Dominion before a jury verdict.
Legal experts have said Fox could face enormous monetary damages if a jury finds for Dominion. It also faces a public replaying at trial of many of the damaging revelations turned up by Dominion in depositions and discovery, such as emails and messages by Rupert Murdoch, Fox executives and hosts that they privately knew Trump had lost the election but pressed ahead with his false claims to keep viewers from switching away.
The voting company, though, faces a steep climb in court as well, which could also open the door to settlement talks. “Dominion still must prove Fox acted with actual malice and [prove] the damages suffered,” said Carl Tobias, a professor at the University of Richmond law school.
Fox has objected strongly to Dominion’s claim of $1.6 billion in damages, noting that one of its investors paid a mere $38.3 million to acquire about three-quarters of the company five years ago.
The trial is scheduled to begin on April 17 in Wilmington, Del.