WILMINGTON, Del. – A judge ruled on Tuesday that Fox News could not claim it had broadcast false information about Dominion Voting Systems on the basis that the allegations were newsworthy, limiting an important line of defense for the network as it faces the beginning of a potentially costly libel suit next week.
The judge, Eric M. Davis of the Delaware Superior Court, also ruled that Dominion could not refer to the January 6, 2021 attack on the Capitol, except in very limited circumstances, and said he did not want jurors to be biased by events that were irrelevant to the central question in the case: Did Fox broadcast wild claims about Dominion’s alleged involvement in a conspiracy to steal the 2020 presidential election from Donald J. Trump, knowing they were lies?
In the first of two days of pretrial hearings, Judge Davis set many of the parameters that will determine how the trial proceeds, including what kinds of arguments the 12-member jury can hear and what questions lawyers can ask during jury selection to rule out those they think are not impartial.
The hearing covered matters big and seemingly small, from the application of the First Amendment to how jurors can take notes.
Judge Davis said he would allow attorneys to ask prospective jurors about their cable news viewing habits and whether they’ve watched Fox News programs — or intentionally avoided them. However, he won’t allow questions about how someone voted.
In another ruling, the judge denied a motion by Dominion that sought to limit how Fox attorneys could invoke the First Amendment, giving the network some leeway to argue that the Constitution protects it from liability.
The lawsuit, in which Dominion is seeking $1.6 billion in damages, represents an important test of the First Amendment and, depending on the outcome, could raise questions about whether defamation laws adequately protect victims of misleading information campaigns.
Fox News v Dominion Voter Systems
Documents from a lawsuit filed by voting machine maker Dominion against Fox News have shed light on the debate within the network over false claims related to the 2020 election.
While legal experts have said Dominion’s case is unusually strong, defamation cases are extremely difficult to win because the law essentially requires evidence of the defendants’ state of mind. Dominion’s job will be to convince a jury that the people inside Fox actually acted maliciously, meaning they knew the allegations they were making were false but did so anyway, or acted so recklessly that they overlooked facts that would have proved them wrong.
Fox has argued that while it understood that many of its guests’ claims about Dominion were false, they were still worth treating as inherently newsworthy. Fox’s lawyers have taken the position that there is nothing more newsworthy than claims by a former United States president that an election lacked credibility.
But Judge Davis disagreed.
“Just because someone is newsworthy doesn’t mean you can defame someone,” he said, referring to pro-Trump attorneys like Sidney Powell and Rudolph W. Giuliani, who repeatedly spoke on Fox News in the weeks following the 2020 election. and Fox Business appeared. and linked Dominion to several conspiracy theories.
The judge warned Fox’s lawyers and said they could not argue that the false statements about Dominion came from guests like Ms. Powell and not Fox hosts. That argument is irrelevant, he said, because the fact remains that Fox, as a broadcaster, is responsible.
“It’s a publishing issue, not a matter of who says it,” he said.
Dan K. Webb, an attorney representing Fox, explained that hosts would testify that they were unsure of the truth of the allegations, but covered them up because the former president and his lawyers said they could prove them.
“The hosts will say that during that period, 15, 20 days, they were careful not to repeat the claim,” Mr Webb said.
Judge Davis responded, “Just because they say it doesn’t mean it’s true.”
It wasn’t the only tense conversation between the judge and Fox lawyers on Tuesday. At one point, a Dominion attorney, Justin Nelson, informed Judge Davis that it was only in the past 48 hours that Fox had revealed that Rupert Murdoch, whose family controls the Fox media empire, had a bigger role in Fox News than the company initially had allowed. on.
By not acknowledging the extent of Mr. Murdoch’s responsibility to Fox News, the personal communications from him for Dominion to review were “significantly more limited,” Mr. Nelson said.
Judge Davis was not pleased. “This is a problem,” he said. “I need to feel comfortable that when you represent something to me, it’s true,” he added.
Fox has also made the case that its actions were not defamatory, as many on-air hosts and guests said there was a lack of conclusive evidence suggesting widespread voter fraud.
Judge Davis also rejected this position.
“You can’t absolve yourself from slander just by appointing someone at another time to say something different,” he said.
In asking for such a large settlement against Fox, Dominion has cited the death threats his employees have received. People have shown up outside the Denver headquarters armed and left voicemail messages threatening to blow up the offices.
Judge Davis on Tuesday limited how Dominion can refer to those threats in front of jurors, ruling that it cannot name specific content. He said he didn’t want jurors to think Fox was responsible for third-party actions.
The trial begins Monday and jury selection is expected to be completed by the end of this week.
Before Tuesday, the judge had already ruled that Dominion could force several high-profile Fox executives and hosts to testify in person, including Mr. Murdoch; Suzanne Scott, the CEO of Fox News Media; and Fox News personalities Tucker Carlson, Sean Hannity, and Jeanine Pirro.
