Judge rejects Fox motions, allows Dominion’s $1.6 billion defamation suit to go to trial


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Members of Rise and Resist participate in their weekly “Truth Tuesday” protest at News Corp headquarters on February 21, 2023 in New York City. 
Michael M. Santiago | Getty Images News | Getty Images

A Delaware judge on Friday said Dominion Voting’s $1.6 billion defamation lawsuit against Fox Corp. and its networks could go to trial in April.

Judge Eric Davis of Delaware’s Superior Court rejected Fox’s arguments that it should bypass a trial since it’s protected by the First Amendment. The judge granted some of the voting machine maker’s motions, with the exception of its argument that Fox and its hosts acted with malice in broadcasting false claims about the 2020 presidential election between Donald Trump and Joe Biden.

The ruling comes more than a week after Fox and Dominion’s attorneys met before Davis over two days in Delaware, urging him to make a ruling rather than go to trial with jury in mid-April.

“We are 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. We look forward to going to trial,” Dominion said late Friday afternoon.

Fox also weighed in on the judge’s ruling.

“This case is and always has been about the First Amendment protections of the media’s absolute right to cover the news. FOX 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,” the company said.

Dominion brought its lawsuit against Fox News and Fox Business, as well as their parent Fox Corp., in 2021, arguing the channels and their hosts pushed false claims that its voting machines were rigged in the 2020 election that saw Biden triumph over Trump. The former president, who was indicted Thursday in an unrelated criminal matter, has repeatedly made false claims about the election being rigged against him.

Last year, as part of Dominion’s evidence gathering, the company deposed executives at both Fox Corp. — including Chairman Rupert Murdoch and his son and Fox CEO Lachlan Murdoch — and Fox News, as well as the top hosts on the network. In recent weeks, a trove of evidence has been released as part of the case, showing the hosts, as well as Rupert Murdoch, were skeptical of the election fraud claims being made on air.

Dominion has argued Fox defamed the company, affecting its business, and acted with malice. Fox has argued it was reporting on newsworthy allegations, at the time stemming from Trump and attorneys, and is protected by the First Amendment.

The judge pointed to the statements regarding election fraud, that Dominion manipulated vote counts through software and algorithms, that it was founded in Venezuela to rig elections on behalf of late dictator Hugo Chavez, and that it paid kickbacks to government officials who used the machines in the election – all of which were said on air on Fox – to be defamatory.

“The statements also seem to charge Dominion with the serious crime of election fraud. Accusations of criminal activity, even in the form of opinion, are not constitutionally protected,” Davis said in court papers.

While the judge on Friday granted summary judgement on some of Dominion’s arguments, including defamation, he didn’t grant one on actual malice.

In order to win a defamation case, a plaintiff needs to prove that the individual or business they are suing knowingly made false statements that caused harm, and that it acted with “actual malice,” meaning the speaker knew or should have known what they were saying to be untrue.

In the evidence released in recent weeks, internal text messages and emails between Fox executives and its hosts have shown they were skeptical of the claims being made on air. Still, Dominion argues, Fox continued to host guests such as Trump attorneys Rudy Giuliani and Sidney Powell, who repeated erroneous claims of election fraud.

Fox argued last week in court that the basis of its case was “whether the press accurately reports the allegations, not whether the underlying allegations are true or false.” Attorneys have built the media company’s case around the notion that “any reasonable viewer” of the news would be able to discern what was allegations or facts on Fox’s networks.

In Friday’s opinion, Davis, the judge, aid there was “no clear and convincing evidence of actual malice.” Instead, Davis said it is a matter a jury should decide.

Similarly, on Fox’s arguments against the $1.6 billion in damages Dominion is seeking in this case, Davis said the matter is for a jury to decide – including the calculation of how much the damages should be.

The trial, which is expected to last for weeks, is set to begin on April 17, with a pre-trial conference and jury selection taking place the week before.

Dominion is requesting Fox’s top hosts, including Tucker Carlson, Sean Hannity, Maria Bartiromo and Jeanine Pirro, as well as former host Lou Dobbs and Fox News CEO Suzanne Scott, appear on the stand for questioning. The depositions of both Murdochs, as well as other Fox Corp. executives, are to be included in the trial, too.

Former Fox producer Abby Grossberg was also added to Dominion’s witness list. Grossberg, who worked on the shows of Bartiromo and Carlson, filed a lawsuit against Fox alleging she was coerced into providing misleading testimony as part of the Dominion lawsuit.

Read the ruling.

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