What to Know About the Fox-Dominion Defamation Trial
A Fox News reporter during coverage of a news conference at the White House in Washington, D.C, on Oct. 2, 2019. Credit - Doug Mills—The New York Times/Redux
Dominion Voting Systems, an election technology company that became the subject of numerous conspiracy theories after the 2020 election, is suing Fox News for defamation.
The lawsuit, which centers on the election-related falsehoods spread by Fox News stars and guests in the wake of the 2020 election, represents one of the most high-profile defamation cases in recent history. Former President Donald Trump—who is not involved in this case—and his allies said Dominion contributed to election fraud. Fox News talent, including Lou Dobbs and Maria Bartiromo, amplified the claims, which Dominion argues Fox knew were false at the time, amounting to defamation. Fox says that its broadcasts were protected by the First Amendment, that Trump allies’ claims of voter fraud were inherently newsworthy, and that the company’s on-air personalities were not knowingly making false statements.
Jury selection is scheduled to begin on April 13 in Delaware, with the trial set to start on April 17.
Here’s what to know about the case.
Why is Dominion suing Fox News?
Dominion is suing Fox News for defamation, arguing that some company executives and on-air stars knew that the network was airing inaccurate conspiracy theories that damaged Dominion’s reputation.
These include false claims espoused by Fox employees and Trump-aligned guests that Dominion rigged the 2020 election against Trump and on behalf of President Joe Biden by manipulating vote counts. Amid unproven claims of voter fraud on various platforms, some state elections officials raised concerns about working with Dominion, with one county in Northern California terminating its contract with the company.
Texts and emails revealed as part of the litigation indicate that several people at Fox had doubts about the election fraud claims the network was peddling as the company scrambled to retain viewers who were defecting to other right-wing outlets, like Newsmax and One America News Network (OANN).
“Sidney Powell is lying by the way. I caught her. It’s insane,” host Tucker Carlson wrote in a November 2020 text to host Laura Ingraham about the lawyer who was spreading baseless claims of election fraud. In a later text, he wrote, “It’s unbelievably offensive to me. Our viewers are good people and they believe it.”
In a separate text, political correspondent Bret Baier wrote, “There is NO evidence of fraud.”
Rupert Murdoch, the chairman of Fox Corporation, has also conceded that some Fox hosts “endorsed” the “false notion” that the 2020 election was stolen and that he personally could have done more to prevent claims about election fraud from airing.
What are the major legal questions?
The judge overseeing the case, Eric Davis, has already ruled that Fox’s claims about Dominion were false. But a jury will decide whether Fox knew it was making false statements or acted with reckless disregard for the truth—the high “actual malice” standard established by the 1964 Supreme Court case New York Times Co. v. Sullivan for proving defamation in cases involving public figures and matters of public concern.
“It isn’t enough for Dominion to be able to show that there was widespread understanding within the broader Fox universe that the election wasn’t stolen,” says University of Utah law professor RonNell Andersen Jones, a First Amendment scholar. “Dominion has a much more specific task. Dominion has to show that people who were responsible for the creation of the specific lies about Dominion knew that those specific statements weren’t true.”
Additionally, if the jury finds that Fox did defame Dominion, it will decide whether Fox Corporation shares blame and exactly how much financial damage Dominion incurred.
Will Rupert Murdoch testify?
Davis said last week that he would compel Murdoch to testify in person if Dominion decides to subpoena him. Dominion’s lawyers have indicated they would like Murdoch to testify.
Who else is expected to testify?
Dominion has also indicated it wants Murdoch’s son and Fox Corporation’s executive chair, Lachlan Murdoch, to testify, along with former House Speaker Paul Ryan, now a Fox board member, and Viet Dinh, Fox’s chief legal and policy officer.
The two parties have agreed that several on-air stars—Carlson, Bartiromo, Baier, Sean Hannity, and Jeanine Pirro—as well as former host Lou Dobbs and Fox News CEO Suzanne Scott will testify.
The testimony matters because the trial is likely to center on whether the individuals who spread falsehoods about Dominion were the same ones who knew those claims were incorrect.
“It’s going to be a very fact-heavy inquiry by the jury,” says Jane Kirtley, professor of media law and ethics at the University of Minnesota and former executive director of the Reporters Committee for Freedom of the Press. “I think the credibility of the Fox people as they appear on the stand is going to be critical.”
Will the trial be broadcast?
Delaware does not generally allow video cameras in its trial courtrooms, so the trial will not be broadcast live, according to Sean O’Sullivan, chief of community relations for the Delaware Courts. The trial is expected to last more than a month.
What are the potential consequences for Fox News?
If Fox were to lose in court, the company could be on the hook for a sum of up to $1.6 billion, the amount Dominion is seeking. The reputational damage to Fox also could be significant. The discrepancy between what Fox aired and what its hosts privately believed has already damaged trust in the brand, according to media experts, and a weeks-long trial could exacerbate the situation.
Fox is also facing other legal trouble, including a $2.7 billion defamation suit brought by another election technology company, Smartmatic. “Although this case is very, very important, part of its importance is that it may set the table for an arc of litigation to come,” says Andersen Jones.
