As Fox News goes to trial to defend against a $1.6 billion lawsuit that could set a critical benchmark for protecting free speech in an era of politicized disinformation, the presiding judge faces a high-profile test of his abilities in the middle of a media discussion. spectacle.
Legal analysts say Delaware Superior Court Judge Eric M. Davis has so far been impartial and fair, even as he has slammed Fox’s attorneys for withholding evidence and at times expressed skepticism about the network’s defense against charges that it knowingly false claims of voter fraud in the 2020 presidential election.
Each decision by Judge Davis is already being examined for its potential impact on the outcome of the jury trial, which begins Monday. It is by far the most-watched libel case involving a media organization in decades and an important measure of just how large the shield the First Amendment provides.
In the lawsuit, Dominion Voting Systems, a voting technology company, accuses Fox and some of its hosts and executives of damaging its reputation by reporting baseless claims that it was involved in massive voter fraud. Fox has responded that it reported on newsworthy allegations made by former President Donald J. Trump and his supporters.
In preliminary rulings, Judge Davis, 61, has shown himself to be “comprehensive, clear and direct,” important qualities in such a high-profile case, said Carl Tobias, a law professor at the University of Richmond.
“Davis seems to hold back from getting into litigation so matters are about the merits and the litigants rather than the judge,” Mr. Tobias said. “Perhaps most importantly, Davis displays a moderate judicial temper, which is essential when the stakes are huge and emotions are running high.”
Judge Davis has been a judge since 2010 and has served on Superior Court for the past decade, overseeing cases as diverse as a neurosurgeon harassing his patients, a cold case murder and a dispute over whether insurers should pay for fraud by a former CEO of the Dole food empire. Matters currently on his docket include personal injury claims and mortgage brokerage.
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.
Judge Davis is also overseeing a libel suit that closely resembles the Fox-Dominion trial. Smartmatic, another voting technology company, is suing Newsmax, another right-wing cable channel, over similar allegations of unsubstantiated election vote fraud allegations. That case isn’t as far along as the Fox-Dominion case.
Jury selection in the Fox-Dominion case began Thursday. Opening statements are expected on Monday and the process is expected to last until the end of May.
A series of recent preliminary rulings has shed further light on how Judge Davis proceeds, showing that he has taken steps to reassure both parties that he had not predetermined the outcomes.
At a hearing on March 22, Judge Davis praised the professionalism of attorneys for both Fox and Dominion, warning that a trial “would be a truth-seeking situation and not a game of gotcha and not a game with me.”
But he also made some important decisions that set the parameters of the case. In a setback for Fox in late March, Judge Davis rejected the news network’s argument that the First Amendment protected it on the grounds that it accurately reported on the voter fraud allegations and dismissed the announcers’ endorsement of the false claims as ” opinion’. ”
“The evidence developed in this civil suit shows it is clear to CRYSTAL that none of Dominion’s statements regarding the 2020 election are true,” Judge Davis wrote in a 130-page decision.
It was a partial victory for Dominion, who has yet to convince the jury that Fox acted with “actual malice,” a legal standard for defamation that requires proof that the defendant either knowingly spread lies or was so reckless as to amount to to ignoring abundant evidence that the claims were untrue.
On Tuesday, Judge Davis struck a blow to Dominion, ruling that his attorneys could not refer to the January 6, 2021 riot at the Capitol because it could harm the jury. At that hearing, he also limited how much Dominion’s legal team could tell jurors about death threats the company’s employees had received, saying no mention of the specific content of the threats could be made.
On Wednesday, the judge dismissed Fox’s lawyers because of evidence in the case — including recordings of conversations between the network’s hosts and people who claimed knowledge of the alleged fraud — which has only just come to light. He indicated that he would likely appoint a special master to investigate whether they deliberately withheld relevant evidence, ruling that Dominion would be able to retake testimony at Fox’s expense.
“Judge Davis has lived with, and worked vigorously to reach a fair resolution, which is perhaps the most consistent defamation case since NYT v. Sullivan,” Tobias said, referring to the 1964 Supreme Court decision establishing the need for a plaintiff to prove that false information was published with “actual malice”.
The judge’s decisions, even small ones, have received a lot of media attention. But that will certainly pale in comparison to the scrutiny to come as news outlets from around the world flock to the humble courthouse in Wilmington, Del. Tucker Carlson, Maria Bartiromo, Rupert Murdoch, his son Lachlan and Suzanne Scott, the CEO of Fox News.
There are already limits on how the proceedings can be covered, which may dampen the spectacle somewhat: no video or audio may be broadcast from the courtroom, and reporters in the courtroom are not allowed to use the internet.
Judge Davis declined to comment on this article, as did representatives for Dominion and Fox.
Judge Davis graduated from the University of Virginia and attended Emory University School of Law, graduating in 1992. After a stint at the Baltimore law firm of Miles & Stockbridge, he became a partner in the Wilmington office of multinational corporation Skadden, Arps . , Slate, Meagher & Flom, where he worked as a commercial litigator specializing in corporate restructuring.
Jack Markell, then the Democratic governor of Delaware, appointed Judge Davis in 2010 to the Court of Common Pleas, which oversees everyday criminal cases, such as motor vehicle misdemeanor and violations, and non-jury civil cases.
In November 2012, Governor Markell nominated Judge Davis to join the Superior Court, which has jurisdiction over most criminal and civil cases in Delaware, and has no monetary cap on what it can award in damages.
Judge Davis said in a press release announcing his nomination that he had been working to expedite civil trials in the Common Pleas Court by creating an expedited role “so that we can resolve these disputes more quickly and efficiently.”
“I look forward to contributing to Superior Court in the same way if I am confirmed,” he said.
