The courtroom showdown between Fox News and Dominion Voting Systems is being called the media trial of the 21st century and that’s not an exaggeration.
In one corner, the Rupert Murdoch-owned conservative cable network that has a powerful and often polarizing influence on political discourse in the U.S., irritating liberals and providing sustenance to Donald Trump’s supporters.
Across the ring is the Denver-based voting equipment maker, which says Fox News damaged its reputation to the tune of $1.6 billion dollars when guests and hosts on the network falsely said the company was a central player in rigging the 2020 election for President Biden, a myth promoted by the Trump camp.
Dominion is arguing the network perpetuated Trump’s lies through his attorney Sidney Powell and adviser Rudy Giuliani in order to keep its unhappy viewers from fleeing to upstart conservative channel Newsmax.
Opening arguments begin Monday in Delaware Superior Court — a development that is stunning in itself as legal experts noted that such defamation cases rarely go to trial.
If sports books offered a line on a settlement, most lawyers would have bet it would be done before evidence was gathered for discovery. As a result, the dishy internal communications by Fox News talent and executives have been sprayed out by the press like candy from a piñata.
“I’m very surprised it didn’t settle before discovery and before Fox had to produce all of this stuff that garnered all this publicity,” said Lee Levine, a veteran 1st Amendment attorney.
Texts, emails and deposition testimony provided a glimpse into the inner workings of Fox News, showing how executives and hosts tried to balance their own disbelief of Trump’s allegations with their perceived need to mollify his supporters who habitually watch the network.
Documents also revealed disdainful comments about Trump and Powell and tensions between the right-wing commentators and straight-news journalists working at the network.
The skepticism — and fact-checking inside Fox News — did not deter the network from presenting the false claims on its programs in the weeks after the 2020 election. The surfeit of evidence is highly unusual in defamation cases, weakening the network’s defense, legal experts have said.
Judge Eric Davis has already ruled that Fox News did present false information, citing programs hosted by Tucker Carlson, Sean Hannity, Jeanine Pirro and Lou Dobbs. Murdoch acknowledged as much in his deposition testimony given in January.
The ruling rejects the network’s defense that the false claims were newsworthy because they were made on behalf of the president, which legal experts believe is a huge advantage for Dominion.
The 12-person jury in Delaware will have to decide whether Fox News acted with malice by presenting the claims while knowing the information was false or displaying a reckless disregard for the truth.
Jurors will probably see the network’s talent take the stand to defend their actions. The 92-year-old Murdoch could be among the first witnesses called with his son Lachlan, executive chairman of Fox News parent Fox Corp, not far behind.
The high-profile nature of the case and its witnesses will put courtroom sketches and video in heavy rotation on the network evening news and cable outlets CNN and MSNBC, who are more than happy to report on the troubles of a competitor. (So far, Fox News has seen no ratings erosion related to the case as it has maintained its dominant share of the cable news audience).
The defense is likely to lean heavily on the on-air-talent-turned-witnesses to show they were trying to get answers on the voter fraud claims being made and did not present them as fact. Their experience in front of the TV camera is expected to help.
“They are going to have these stars and these people are very polished performers and that can be very attractive before a jury,” said Stuart Brotman, a journalism professor at the University of Tennessee, Knoxville.
Dominion will argue that executives and producers throughout Fox News knew the allegations from Powell and Giuliani were false — often describing them as “nuts” and “crazy” in private — but did not act to stop them from being repeated on the air.
Fox News attorneys are also likely to assert that Dominion’s business has not been damaged by any of the statements made on the network.
In a hearing Wednesday, Fox News attorneys noted that Dominion had its second best revenue year in its history in 2022, outperforming the company’s projections. The point will probably be part of their argument that the $1.6 billion damages the company is seeking is way out of proportion to its asset value.
But the walk-up to the trial has not gone well for Fox News. On Wednesday, Davis sanctioned Fox News attorneys for “discovery misconduct” after it was revealed that taped conversations with Giuliani, Powell and an unnamed Trump campaign official were not submitted in evidence.
The recordings were on the mobile phone of Abby Grossberg, a former producer of Bartiromo’s program “Sunday Morning Futures,” who has filed a lawsuit against the network claiming discrimination and harassment. Grossberg also alleges Fox News attorneys coerced her into giving misleading statements in her deposition testimony for the case.
Davis is considering a special master to investigate whether Fox News has withheld other evidence. Dominion can also conduct further depositions at Fox’s expense.
“I think it’s a lawyer’s worst nightmare to come up on the eve of trial and realize that you have so totally offended the judge,” said Carl Tobias, a professor at the University of Richmond School of Law.
If the court finds other instances of evidence that was not submitted, Davis could inform the jury and cut into their trust of the defense.
“It would be a really serious sanction if he tells the jury Fox has withheld information,” Brotman said. “That would hurt.”
Fox News is trying to make the case that a Dominion victory would weaken 1st Amendment protections.
“While Dominion has pushed irrelevant and misleading information to generate headlines, Fox News remains steadfast in protecting the rights of a free press, given a verdict for Dominion and its private equity owners would have grave consequences for the entire journalism profession,” the company said in a statement.
Dominion has challenged Fox News’ 1st Amendment defense.
“As long-settled law makes clear, the First Amendment does not shield broadcasters that knowingly or recklessly spread lies,” a Dominion representative said in a statement. “The Court has rejected Fox’s First Amendment ‘newsworthy allegation’ defense and held that Dominion’s lawsuit is consistent with the First Amendment.”
Levine believes if Dominion prevails, it will actually dampen efforts to overturn New York Times vs. Sullivan, the landmark decision that sets the standard for malice in defamation cases. Some conservative leaders have expressed a desire to change the law because they believe burden of proof is too high.
“Nobody sees this as some sort of threat to mainstream news organizations and in fact most people, including me, see it as a ironically as a boon to press freedom,” Levine said. “There will probably be a short period of copycat cases where people out there have been criticized in the press and try to see a payday. They’ll be dealt with in due course, and long term, I don’t think it will have any impact.”