A trial in a defamation suit brought against Fox News by Dominion Voting Systems is set to begin this week. It could have significant ramifications for the right-wing cable channel.
The trial had been expected to start Monday in Delaware, but Superior Court Judge Eric Davis announced it would be delayed until Tuesday, according to a statement released Sunday night by the court.
Dominion is an election technology company. After former president Donald Trump lost the 2020 presidential election to Joe Biden, Dominion alleged Fox pushed various pro-Trump conspiracy theories, including false and potentially damaging information about the company’s voting technology, because “the lies were good for Fox’s business.” Fox is arguing that it was merely reporting the claims made by the Trump administration and Donald Trump’s associates.
It filed a defamation lawsuit in 2021.
Here are 5 things to know ahead of the trial.
Fox anchors and executives could take the stand
Dominion wants the network’s star hosts and top executives to appear on the witness stand during trial, it said in a court filing in March.
Here’s who could appear as witnesses, if Dominion gets its way:
• Suzanne Scott, Fox News CEO
• Jay Wallace, Fox News president
• Hosts Sean Hannity, Tucker Carlson, Maria Bartiromo, Laura Ingraham and Bret Baier
• Abby Grossberg, a former Fox News producer who alleged that the network’s lawyers coerced her into providing misleading testimony in a lawsuit filed March
• In April, Delaware Superior Court Judge Eric Davis said Dominion could compel Fox Corporation Chairman Rupert Murdoch and his son, CEO Lachlan Murdoch, to testify, in a big blow to Fox.
“Both parties have made these witnesses very relevant,” Davis said, regarding the Murdochs. Fox was trying to block Dominion from having the Murdochs on the witness stand.
There’s a lot of money involved
Dominion is asking for $1.6 billion in damages and additional punitive damages.
That could be a major financial hit to Fox. Fox Corporation, the right-wing news outlet’s owner, has an estimated $4 billion in cash on hand, according to its latest earnings statement. It’s also unclear how much insurance the company has, or what any insurance policy would cover.
Punitive damages are, however, uncapped in Delaware, with no legal maximum limit.
The network claims that number is a wildly overblown amount designed to grab attention in headlines.
First amendment implications
Fox argued in a statement the case is about protecting “the rights of the free press” and a verdict in favor of Dominion would have “grave consequences” for the fourth estate.
“Dominion’s lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights,” a Fox spokesperson said in a statement.
Defamation cases are hard to win in the United States, because of the Supreme Court’s ruling in New York Times v. Sullivan in 1964. Defamation has to meet a high standard. An entity can’t have just lied, it must have known (or at least strongly suspected) it was lying at the time, and it has to have been done with “actual malice.” The court has already ruled on the first two, saying that Fox aired lies and knew they were lies, so instead of a question of truth, it’s about whether Fox did so maliciously.
Though major figures at Fox privately acknowledged reality – that former President Donald Trump had lost to President Joe Biden in 2020 – Fox continued to air conspiracies and lies in order to keep its large audience engaged.
A cache of private messages, emails and depositions revealed that Fox may not have upheld the journalistic responsibility to report the truth to audiences. The judge has rejected several of Fox’s First Amendment defenses and in pretrial rulings barred the network from arguing its guests’ alleged defamatory statements were “newsworthy” and deserving of coverage.
Private messages made public
Legal filings made public a trove of private text messages, emails and deposition transcripts, revealing how Fox hosts, producers, and executives really felt about Trump.
The damning behind-the-scenes communications were included in roughly 10,000 pages of court documents that have been made public as part of the lawsuit, many of which are likely to be shown in the trial.
For example, host Tucker Carlson said in one text message he “passionately” hates Trump. In one November 2020 exchange, Tucker Carlson said Trump’s decision to snub Joe Biden’s inauguration was “so destructive,” adding that Trump’s post-election behavior was “disgusting” and that he was “trying to look away.”
Murdoch emailed New York Post’s Col Allan, describing Trump’s election lies as “bulls**t and “damaging.”
Murdoch’s private messages revealed how his own thoughts contradicted what Fox espoused. “Maybe Sean [Hannity] and Laura [Ingraham] went too far,” Murdoch wrote in an email Fox News chief executive Suzanne Scott, apparently referencing election denialism after Trump’s loss to President Joe Biden.
Delaware Superior Court Judge Eric Davis said he will convene a hearing Monday morning to formally announce the one-day delay. But no other proceedings are now expected on Monday in the case.
Opening statements are expected at some point during the day Tuesday. Jury selection is also expected to wrap up Tuesday morning, ending with a panel of 12 jurors and 12 alternates. It’s anticipated that opening statements will begin immediately after the jury is seated. The trial is expected to last five to six weeks.
Dominion will need to convince the jury that Fox acted with “actual malice” — showing the right-wing network’s hosts and executives knew what was being said on-air was false but broadcast it anyway, or acted with such a reckless disregard for the truth that they should be held liable.
CNN’s Oliver Darcy, Marshall Cohen and Jon Passantino contributed to this story.