Judge in Dominion defamation case skeptical of Fox’s arguments, as both sides seek a pretrial win

By Marshall Cohen

Lawyers for Dominion Voting Systems argued Tuesday that its defamation case against Fox News is so strong that a trial isn’t needed, and the judge followed up with some challenging questions for the right-wing outlet during an all-day courtroom clash.

Both sides were in court for a major hearing, where they tried to persuade Delaware Superior Court Judge Eric Davis to to grant “summary judgment” — and decide the case in their favor now, instead of proceeding to a scheduled jury trial next month.

The proceedings went longer than expected due to prolonged procedural arguments in the morning and will resume Wednesday morning. It’s unclear when the judge will issue a ruling, and there is a high bar for either side to prevail at this stage.

Dominion lawyer Justin Nelson quickly took aim at the top — arguing that Fox Corporation chairman Rupert Murdoch and his son, CEO Lachlan Murdoch, gave clear but implicit instructions to Fox News staffers after the 2020 election to “shut down the talk of fact-checking” and “let the hosts run wild” with conspiracy theories that the race was rigged against then-President Donald Trump.

“They made the decision to let it happen,” Nelson said, referring to the litany of baseless claims about the voting company that got airtime on Fox News in late 2020.

Before the hearing, Fox News revealed in a court filing that Dominion is seeking a court order compelling the Murdochs and other top Fox Corporation officials to testify at the trial, which is slated for April 17. Fox lawyers said the Murdochs only have “limited knowledge of pertinent facts” and argued that Dominion should instead rely on the “lengthy depositions” they gave.

“Compelling live testimony at trial will add nothing other than media interest,” lawyers for the right-wing network wrote in a Monday filing. “But this is a trial, not a public relations campaign.”

The lawsuit is considered one of the most consequential defamation cases in recent memory. Dominion claims Fox News pushed various pro-Trump conspiracy theories about the election technology company because “the lies were good for Fox’s business.” Fox News has strongly disputed Dominion’s allegations and maintains that it is “proud” of its 2020 election coverage.

High-stakes hearing

The hearing came weeks after hundreds of explosive emails and texts were made public as part of the case. These internal Fox News messages showed that many of the on-air personalities, producers, editors, executives and even corporate owners thought the allegations against Dominion were “nuts,” “kooky” and “BS” — but the network gave airtime to the theories anyway.

Davis, who was appointed by a Democratic governor to the Delaware bench in 2010, had some tough questions for Fox News’ lawyers on Tuesday. He challenged some of their legal theories, but he also warned court-watchers not to predict his ruling based on the rigor of his questioning

“I have not made a decision,” Davis said at the start of the hearing. “I have not pre-decided this.”

He said one of Fox’s arguments “doesn’t seem to be intellectually honest.” At another point, he openly questioned how Fox News could argue that former host Lou Dobbs had engaged in legally protected “neutral” reporting when he signed many of his tweets with a MAGA hashtag.

“There seems to be a Dobbs problem, sometimes,” Davis said.

Later, he suggested Fox News host Maria Bartiromo misled her audience in November 2020 when “she made it sound like she had no knowledge, one way or the other” if the claims about Dominion were true. By then, she had already been told the claims were false, Dominion says.

“How can you be fair if you are knowingly providing false information?” Davis asked.

He even questioned the network’s editorial decision to embrace Trump’s election denialism, which Dominion claims was done because Fox was afraid of losing its pro-Trump audience.

“It could have been a bigger story that a President who lost an election was making all these unsubstantiated false allegations” about widespread fraud, Davis mused from the bench.

The judge previously rejected Fox’s requests to throw out the lawsuit, and allowed Dominion to add Fox’s parent company as a defendant, ramping up the legal exposure for the Murdochs.

Fight over the First Amendment

Fox News attorney Erin Murphy blamed Trump and his allies for inventing the lies about Dominion.

“This is not something that Fox News made up,” Murphy said, referring to the vote-rigging accusations against Dominion. “This is something that was coming from the President and his legal team… you really can’t analyze this case while pretending that this wasn’t going on.”

She also said the network wouldn’t try to prove at trial that Dominion actually did rig the election.

That’s notable, because truth is an absolute defense to defamation. If Fox News could prove that the claims about Dominion were true, there would be no case. But Murphy said Fox is defending itself on other First Amendment grounds — mainly that it was neutrally reporting on inherently newsworthy claims from public figures about a matter of national importance, the 2020 election.

“We never reported those (claims about Dominion) to be true,” Murphy said.

Instead, “all we ever did was provide viewers with the true fact that those allegations were being leveled by the siting President and his lawyers, all throughout the country,” she told the judge.

Fox News has maintained that it is “proud” of its 2020 coverage and has said Dominion’s lawsuit could weaken the First Amendment. Fox News has argued that it can’t be held liable for airing inherently newsworthy allegations from public figures that Dominion rigged the 2020 election, even if those claims were false. Fox News has also argued in court that Dominion’s request for $1.6 billion in damages is a wildly inflated figure, citing the company’s previous valuations.

Chaos behind the scenes

Tuesday’s hearing came one day after a Fox News producer filed a pair of explosive lawsuits, alleging that the network’s lawyers coerced her into providing misleading testimony during her deposition in the Dominion case. Abby Grossberg, who was a top producer for Bartiromo and most recently head of booking for Tucker Carlson, accused Fox lawyers of wrongful conduct.

Fox News has denied the claims in public statements. The lawsuit only briefly came up during Tuesday’s hearing, when the judge said it had been assigned to him because it was “related.”

The court filings in this case have offered the most vivid picture to date of the chaos that transpired behind the scenes at Fox News after Trump lost the election. And viewers rebelled against the right-wing channel for accurately calling the contest in President Joe Biden’s favor.

In one particularly damaging admission revealed last month, Murdoch acknowledged that some of the most prominent Fox News hosts endorsed false claims that the 2020 election was stolen.

“Some of our commentators were endorsing it,” he said, when asked about the hosts’ on-air positions about the election. “I would have liked us to be stronger in denouncing it, in hindsight.”

At Tuesday’s hearing, Dominion lawyers said the election lies harmed the American public.

This lawsuit is about “protecting the integrity of our public discourse itself,” Dominion lawyer Rodney Smolla said, adding cases like these “protect the public from deliberate falsehoods.”

The-CNN-Wire
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