Fox News-Dominion Trial Explained: Rupert Murdoch, Tucker Carlson, What’s At Stake & Who Could Win
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After a one-day delay and amidst whispers of settlement talks, Dominion Voting Systems’ $1.6 billion defamation trial against Fox News is set to begin Tuesday in Wilmington, DE.
So, with final jury selection having just started and then opening statements looming before Judge Eric M. Davis, what are the main issues in Dominion vs. Fox? What are the stakes? Who are the players? Could Fox win?
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We have some answers.
Leaving aside the chatter about the fate of the crown jewel of Rupert Murdoch’s media empire, the mogul’s own legacy and the future of news coverage in an age of disinformation, the trial could ultimately come down to the First Amendment for defendant Fox News and who knew what and when for Dominion. That said, after all the motions and depositions, there is every reason to expect this trial will be chock-full of moments of drama, with the 92-year-old Murdoch and big-time Fox News hosts like Tucker Carlson, Sean Hannity and Laura Ingraham poised to testify.
“I don’t think there are huge legal issues involved because I believe that liability is one thing, and damages are another,” attorney Patricia Glaser tells Deadline of the Dominion v. Fox News action.
“I don’t know the evidence well enough to comment on what the damages look like, but if indeed the plaintiff was doing well, their evidence will be, but we could have done so much better,” the heavyweight Hollywood litigator says. “That’s interesting, and they’re going to need a really good expert for that. On the liability issues, defamation of such they have, at least as reported in the press, some pretty damning emails and text messages. I don’t know what the defense is going to be to that, if any. But I come to the conclusion again, based on as an outsider looking in, that you have a pretty good liability case and a clear, questionable damages case.”
“Based on what I know, which is just a little bit, and what I’ve read, which is a lot, I think, Houston they have a problem,” the Glaser Weil partner adds. “It’s pretty clear they were saying one thing in private emails and texts, and quite another thing publicly on broadcast.”
Preceded by such revelations as Carlson’s private hatred of Donald Trump, and knowledge at the top of Fox that claims the 2020 election was stolen were bunk, the trial looks certain to deliver a rare inside glimpse into the inner-workings of Fox News. In that vein, Fox has termed the lawsuit “a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights.”
Perhaps even more important for the Staple Street Capital-owned Dominion will be the spotlight on the post-election scramble by Fox execs and hosts to deal with the backlash from Trump-supporting viewers after the network on election night was the first to call pivotal Arizona for Joe Biden. As the enraged Trump spitefully urged his fervent MAGA followers to turn to Fox alternatives like Newsmax and One America News Network, Fox hosts and guests amplified his false claims that the election was a rigged and, more specifically, that voting company Dominion was at the center of the rigging.
“It’s remarkable how weak ratings make good journalists do bad things,” then-Fox News Washington bureau chief Bill Sammon, a defender of the Arizona call, wrote in a message in the weeks after the election.
Remarkable indeed in what has already proven a remarkable case.
Q: Why is this trial taking place?
A: In the immediate aftermath of the 2020 presidential election, Trump vehemently claimed, without evidence, that the election was being stolen from him. Most prominent in advancing the claims were two figures who were guests multiple times on Fox News programs: attorneys Rudy Giuliani and Sidney Powell. Dominion contends that not only did Fox give Powell and Giuliani a platform to make the false allegations, but that some of its personalities, like Maria Bartiromo and Lou Dobbs, endorsed them. In March 2021, Dominion sued Fox News for $1.6 billion, and later also filed a defamation claim against FNC’s parent company Fox Corp.
Fox has contended that its personalities were merely covering undoubtedly newsworthy allegations being advanced by a president of the United States. They point to Powell’s role, at least for a time, as an attorney for the Trump campaign, and Giuliani’s position as the president’s personal lawyer.
Q: Who will decide?
A: Judge Davis narrowed the scope of the trial in a summary judgment ruling last month. A 12-person jury will decide whether Fox News engaged in actual malice, whether its parent Fox Corp. is liable and, if the panel decides in Dominion’s favor, the scope of the damages.
Q: Could they settle?
A: Well, yes, but they need to get a move on.
Talks have been going on in one form or another for a while, with sources on both sides acknowledging things heated up in the last week as the trial got closer. With the delay announced on Sunday night, it seemed a deal was poised to come at any moment. After losing on summary judgment and many other motions before the court, it seemed that Fox would have to make a payout and a mea culpa to avoid bossman Murdoch taking the stand and more embarrassing internal information becoming public.
As any trial watcher and every Murdochologist will tell you, a settlement can come at anytime, but if they haven’t reach a deal by now it may just be a bridge too far for both sides.
Q: What does Dominion have to prove?
A: Dominion has to show, with clear and convincing evidence, that Fox News acted with actual malice — that it knew the statements were false and let them be aired anyway, or that they were reckless in disregarding the truth. The jury will consider whether Fox is liable for each of the 20 instances identified in the lawsuit — from the November 8, 2020 broadcast of Sunday Morning Futures with Maria Bartiromo to the January 26, 2021 telecast of Tucker Carlson Tonight.
Q: What happens next?
A: Appeals are likely, given the stakes involved. And this is not the only litigation that Fox News faces over its coverage of the post-election period. Another election systems company, Smartmatic, is suing the network in a New York court. And Dominion and Smartmatic also have litigation against other outlets, including Newsmax and One America News, that were positioned to capture the Fox News audience from viewers upset over its Arizona call.
Q: Could Fox win?
A: In short and in theory, yes. First of all, the First Amendment is a pretty powerful defense. Extrapolate for a jury the risks of courts, not journalists, deciding what can and can’t go on the air, and you painted a portrait of a much more limited sense of free speech. Secondly, proving defamation is a high bar to reach in the American justice system. Thirdly, Fox News and the Murdochs have received a lot of bad press as more internal information has surfaced about what they really knew and what they really thought of Trump’s stolen election claims.
But never underestimate the power of celebrity. Tucker Carlson, Sean Hannity and Maria Bartiromo literally perform, hone their message, and obfuscate for a living — as Lou Dobbs did before Fox canned him. No matter how sharp the Dominion lawyers are, it’s going to be hard for them to have much oxygen once the most-watched stars of cable news are in the room, no matter what end of the political spectrum you call home.
As one high-profile trial after another has shown us, and as the successes of a huckster like Trump have schooled us, fame is a force unto itself. Sitting in a courtroom, the hosts and other Fox personalities could charm the jury with displays of humility and promises of just wanting to be looking out for the little guy. They could make a few self-deprecating remarks and show some regret, admit they were perhaps a bit over-eager, promise to do better, and pledge in their coverage that they were only trying to leave no doubt to the strength of America’s democracy. In media circles, Carlson, Hannity and most other Fox hosts are viewed as cynical and hypocrites. In the real world, they are often viewed as famous people who must know what they are talking about — a high hurdle for any lawyer to jump.
Q: Will Donald Trump be testifying?
A: No. Even though Trump gave his first post-election TV interview to Bartiromo on November 29, 2020, that show is not included in the Dominion challenges. The judge also has been clear that Trump is not at issue in the trial — he did not allow potential jurors to be asked about who they voted for — but rather it’s about the far narrower issues of defamation. That said, Trump is facing his own defamation trial later this month: E. Jean Carroll, who is suing the former president over his denial of her battery claims.
Q: Why does Rupert Murdoch have to testify?
A: Fox has argued that Murdoch should not have to testify in person, given that he already sat for a lengthy deposition. But the judge noted that Murdoch, as an officer of Fox Corp. and, as was later disclosed, of Fox News, could be subpoenaed by Dominion. It’s still unclear when Dominion will call him, but don’t be surprised if they save the best for last, so to speak.
Q: What’s all this about Tucker Carlson hating Trump “passionately”?
A: Much of the publicity surrounding the case has come via the public disclosure of material obtained during the discovery phase of the case, what with a trove of emails, texts and other public records generating big headlines. Many media outlets reported on a text that Carlson sent to a friend on January 4, 2021, in which he said of Trump, “I hate him passionately.” More recently, though, Carlson has hardly been a Trump enemy: The former president gave his first post-indictment sit-down to the Fox host.
Fox News argues that many of the revelations in the data dump doesn’t actually have to do with the issues in the case, and when it comes to Carlson’s text, they may be right. But this trial also has been a PR crisis for Fox News, as the release of so many documents have revealed hosts’ and executives’ private thoughts.
Q: Didn’t other Fox figures cast doubt on the election fraud claims?
A: Indeed. In one infamous broadcast on November. 19, 2020, Carlson told viewers that the widely discredited Powell “never demonstrated that a single actual vote was moved illegitimately by software from one candidate to another.” Fox has noted other instances where hosts challenged or debunked the election-rigging claims. But Judge Davis has said that having some hosts fact-check claims doesn’t absolve the network of other instances of alleged defamation.
Q: The guests are one thing. What did the hosts say?
A: Dominion’s case largely centers on Bartiromo, Dobbs and Jeanine Pirro. They argue that the hosts were not merely dispassionate anchors trying to get at the truth, but that they were actively endorsing the election-rigging claims.
For instance, Dobbs tweeted on December 10, 2020 that the election was a “cyber Pearl Harbor,” linking to a document that named Dominion as involved in a conspiracy.
In one of the recently revealed private recordings, meanwhile, Bartiromo is heard asking Powell, a guest on her show, “Is there anything more I can do for you?” Powell replies, “You could put a chyron on the bottom that mentioned our defense fund for this.”
The judge, after listening to the tape, mocked Bartiromo at one point during the pre-trial hearing, telling a Fox lawyer that the Fox host was “clearly neutral,” before letting the surprised attorney know that he was “being sarcastic.”
Q: What will be a key area of dispute?
A: Many trials center on who knew what and when, but this case will also delve into who believed what and when.
Dominion contends there is a lot of evidence that the network, its executives and producers knew or suspected that the election-rigging claims were false, yet allowed them to be amplified on their airwaves anyway. In November, the company blasted out “setting the record straight” emails to its workforce. Dominion also has cited the fact that during the weeks following the election, Fox’s own fact-checking “brain room” found that the election-rigging claims had no foundation.
Fox is likely to argue that hosts like Bartiromo, Dobbs and Pirro were merely keeping an open mind and reserving judgment about the election-rigging claims being made by Trump and his allies. The network’s legal team also will contend that Dominion has a high bar to show that those hosts themselves acted maliciously. For its part, Dominion contends that the awareness that the claims were false was pervasive at the network among a number of figures in the chain of command of Fox News programming.
Q: Why is this being called the “defamation trial of the century”?
A: Hyperbole aside, any case that involved Donald Trump and his stolen election claims would naturally draw attention. But Fox News is the most-watched cable news network and a central profit center of Murdoch’s empire. On the witness list are a gallery of the network’s top personalities, as well as Murdoch; his son, CEO Lachlan Murdoch; and even Paul Ryan, the former House speaker who is a Fox Corp. board member.
More broadly, though, the case has potential implications on how journalists cover the news in an era of wild conspiracy theories, unfounded allegations and guilt-by-association claims. Having said that, no matter how big this case seems right now, the century is still relatively young.
Q: Why is the trial taking place in Delaware?
A: Fox Corp. and Dominion are set up as corporations in the state. That’s where a majority of Fortune 500 companies incorporate for a number of business-friendly reasons, even if they do not have a physical presence there.
Q: How long is the trial expected to last?
A: About six weeks. That is not a hard and fast rule, as all types of legal wrangling can extend the proceedings. Availability of witnesses, especially ones who have a nightly TV show, could also play a factor.
Q: Will this trial touch on the attack on the Capitol on January 6th?
A: No. Even though Fox News faced plenty of criticism over its post-election coverage and the extent to which network hosts amplified election fraud claims, the judge is not allowing mentions of January 6th to be brought up by attorneys. He believes that would be unfairly prejudicial toward Fox — i.e., implying that it bore some responsibility — when that is not at issue in the case. It is an issue in another lawsuit, brought by Lachlan Murdoch in Australia. He sued the site Crikey over a piece in which he was identified as an “unindicted co-conspirator” with Trump in enabling the attack on the Capitol.
Q: Weren’t these election fraud claims newsworthy?
A: Plenty of news outlets were covering Trump’s stolen-vote allegations in the aftermath of the 2020 election. Where the judge has a problem is when Fox News figures credulously featured Trump’s allies making wild claims about Dominion specifically and repeatedly — even though the hosts themselves didn’t privately believe the 2020 election result was to be doubted. He’s not allowing Fox to use “newsworthiness” as a defense against defamation. But the judge will allow Fox News figures to tell jurors that they invited figures like Powell and Giuliani on their shows because the president’s allegations were a big story at the time.
Q: If Fox News is found liable, do they really face paying out $1.6 billion?
A: Not necessarily. The jury will ultimately decide damages, and that issue has been one of Fox’s central arguments. Their attorneys claim that Dominion has wildly overinflated the amount that it has suffered in damages and that, even so, it still has to prove the losses were as a result of the Fox News broadcasts. Among other things, Fox points to the $80 million valuation that private-equity firm Staple Street Capital gave to Dominion when acquiring 76.2% of the company in 2018. Fox also is challenging Dominion’s claims of lost business.
In fact, this week, in a story first appearing in the Murdoch-owned Wall Street Journal, Fox lawyers offered up that Dominion was cutting its financial ask by more than $600 million based on an email about damages from an attorney for the plaintiffs. Dominion, on the other hand, insisted “the damages claim remains. As Fox well knows, our damages exceed $1.6 billion.”
In earlier filings, Dominion detailed how it was “damaged” to the tune of about $1 billion in losses. The company said, “Following Fox’s defamatory statements, Dominion’s business suffered enormously, and its claim for compensatory damages is based on industry-standard valuation metrics and conservative methodologies.” To that end, the jury will decide on compensatory and punitive damages, which could result in some big bucks even for the deep-pocketed Murdochs.
Q: Why is the judge considering additional sanctions against Fox?
A: Judge Davis says that he plans to appoint a special master to determine whether Fox attorneys withheld evidence at key points of the discovery process. In pre-trial hearings last week, Dominion attorneys complained that they only recently were told that Rupert Murdoch is an officer of Fox News, not just its parent Fox Corp. They also said that they were given access only last week to newly revealed recordings of Bartiromo chatting with Powell and Giuliani before and after they were guests on her show. Judge Davis is upset because he believes that Fox attorneys have been evasive or may have misrepresented themselves over the type of materials released during the discovery process. Fox, though, contends the information about Murdoch was publicly available, and that they weren’t aware of the Bartiromo recordings until last month. Still, one of its attorneys apologized in a recent court filing, calling it a “misunderstanding.”
It’s unclear when or how Judge Davis will follow up on all of this, but Dominion wants him to instruct the jury that Fox has not been forthcoming in the release of materials.
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