Fox defamation trial over election resumes after settlement push

By Erik Larson and Jef Feeley

The trial of a $1.6 billion defamation case against Fox News over its reports that a voting machine maker rigged the 2020 presidential election to make Donald Trump lose moved forward with the selection of a jury, after a one-day delay for last-ditch settlement talks.
 

The trial in Delaware state court, which is to last six weeks, got back underway Tuesday as 12 jurors and 12 alternates were selected after two days in an unusual anonymous process. The judge said both sides felt it was best to keep the jurors’ names secret, a practice more common in criminal than civil cases.

The decision seems to be in keeping with the explosive nature of the events that spurred Dominion Voting Systems Inc. to sue Fox in March 2021 over its airing of the conspiracy theory that ultimately led to the Capitol riot. The list of high-profile witnesses expected to take the stand is topped by News Corp. Chairman Rupert Murdoch. Dominion accuses the 92-year-old media titan of willfully ignoring the obvious falsity of the “stop the steal” campaign his network was rapidly spreading, so he could keep Trump fans from changing channels to competitors like Newsmax. 

Fox texts and emails uncovered as evidence in the case show the network and its parent company, Fox Corp., feared Trump’s wrath after Fox called the swing state of Arizona for Joe Biden. Focusing on the stolen-election claim was seen as a way to mitigate the damage with Trump’s base.

 

‘Playing With Fire’
 

“Do the executives understand how much credibility and trust we’ve lost with our audience?” Fox superstar host Tucker Carlson warned his producer in a text. “We’re playing with fire, for real ... an alternative like newsmax could be devastating to us.”

Dominion argues that Fox broadcast the claims, advanced by Trump and loyalists including Rudy Giuliani and Sidney Powell, knowing they were false or with reckless disregard for the truth, stripping the network of First Amendment protections. Fox says the case puts the free press at risk, that it was reporting newsworthy claims made by a president and that Dominion has vastly inflated the financial impact of the theory on its business. 

Finding jurors who can weigh the evidence fairly in the politically charged case would have been one of the biggest challenges for both Fox and Dominion, said Jessica Riley, a senior consultant at Magna Legal Services, which helps parties with jury selection.

“It may be easy to find jurors who haven’t necessarily heard of the details of this litigation in particular, and individuals who will acknowledge they haven’t developed strong feelings about the case,” said Riley, who isn’t involved in the case. “What will be harder is finding individuals who don’t have strong feelings one way or another about whether the 2020 election was rigged.”

Setting Record Straight
 

More broadly, the trial is an important step in setting the historic record straight amid many Americans’ shaken faith in democracy and continued threats against election workers, said Kathy Boockvar, who was the secretary of state for battleground Pennsylvania during the 2020 election.

“Unfortunately, here we are two and a half years after the election and there are still people who think some of these things are true, which is shocking in and of itself,” Boockvar said. “The trial could continue to shed light on the these allegations being not just false and crazy, but being known to be false and crazy at the time.”

Delaware Superior Court Judge Eric Davis has already ruled that the outlandish claims were false. Now it’s up to the jury to determine whether they were made with “actual malice,” meaning the network knew they were false or aired them with reckless disregard for their veracity.

Fox and Dominion could still settle the suit during the trial. Bloomberg Intelligence reckons a settlement at about half a billion dollars. 

It estimates that if the trial plays out and the jury finds Fox liable, it could award Dominion damages of about $375 million. Even that fraction of the $1.6 billion the voting machine maker is seeking would be one of the biggest defamation awards of all time and would amount to roughly two-thirds of Fox’s adjusted profit in its most recent quarter.

Evidence like the Carlson text shows that Murdoch and other Fox executives and TV hosts knew the claims about Dominion were bogus even as the network amplified them for weeks after Trump lost the election. One incentive for Fox to settle is the potential for courtroom humiliation as Dominion lawyers grill Murdoch and his son Lachlan as well as Fox hosts Carlson, Sean Hannity, Maria Bartiromo and others.

The case is Dominion Voting Systems v. Fox News Network LLC, N21C-03-257, Delaware Superior Court (Wilmington).