Judge to determine whether Dominion defamation case against Fox goes to trial

Whether Delaware Superior Court Judge Eric M. Davis dismisses both requests for summary judgment — one by Dominion Voting systems in its $1.6 billion defamation lawsuit against Fox News and the other by Fox to throw out the suit —  remains unknown after arguments went on all day Tuesday. Both legal teams will have to return to court for a second day Wednesday in order to determine whether the case will head to trial in April.

The Denver-based electronic voting hardware and software company sued both Fox News and its parent company Fox Corporation for defamation in 2021. Dominion argues that in the wake of the 2020 election, Fox News employees touted false claims that Dominion changed votes and gave guests a platform to make inaccurate and defamatory statements, even though they knew the claims were false, and they did so to avoid alienating their conservative audience.

On Tuesday, Dominion argued that material from its discovery showed that there were "deliberate" decisions by those responsible for the broadcasts — all the way up the chain of command — to let the false claims be out there. It was "to release the Kraken," Dominion attorney Rodney Smolla said, echoing one-time Trump attorney Sidney Powell's unfulfilled promise of proof that the election had been stolen from Donald Trump.

Smolla argued after Fox News was the first to call Arizona for Joe Biden on election night, there was fear within the Fox that viewers were abandoning the cable network. That call for Mr. Biden was alienating viewers, Smolla said, and Fox's executives, producers and hosts had to do something to get viewers back; that's why they promoted the narrative that the election had been stolen — and Dominion was the thief.

The threshold that Dominion must meet in this case is high because it must prove "actual malice," meaning that Dominion must show that the network knew the claims were false, or acted with reckless disregard for whether they were false or not in perpetuating the claims of fraud. Dominion lawyers noted that 19 of the 20 broadcasts in question occurred after Dominion had sent "Setting the Record Straight" memos to Fox.

Lawyers for Dominion argued that Fox's statements constituted "actual malice" when they perpetuated the baseless allegations against Dominion. "Why? Because no one wants Trump as an enemy," Dominion attorney Justin Nelson said.

Dominion's attorneys pointed to comments from some of Fox's biggest stars — Tucker Carlson, Sean Hannity, Maria Bartiromo, Lou Dobbs and Jeanine Pirro — which they claimed showed that the hosts knew they were perpetuating falsehoods. Some of the details had been fact checked by journalists at Fox, and they were therefore acting with "actual malice," Dominion attorneys argued. They also alleged that the Murdochs, as well as other Fox Corporation executives, "let the hosts run wild" and discouraged further fact-checking attempts by Fox News journalists, and were therefore also complicit in the defamation.

Attorneys for Fox disputed that Dominion had met the standard to prove "actual malice," arguing that in every broadcast highlighted as an example of defamation in the complaint, the hosts used language that "a reasonable viewer" would understand as mere allegation, rather than fact.

"We do not think we are scott-free because a guest said something rather than a host," Erin Murphy, an attorney for Fox News and Fox Corporation argued in court. However, she went on to say that a show's host could not guarantee to the audience that every word out of a guest's mouth is true. As an example, she claimed that when Fox Business Network host Maria Bartiromo interviewed Rudy Giuliani and Sidney Powell, she took her viewers straight to the source – Trump's own legal team — and asked them about their allegations and the evidence they had to prove the election had been stolen.

As for any additional opining by Fox cable TV personalities, the company's legal team argued that opinion is not defamatory. In its reply brief filed ahead of Tuesday's hearing, Fox News argued that "so long as the press makes clear that the allegations are just allegations, it is free to offer its opinion that the allegations are 'credible' and merit investigation (as some Fox News hosts and other networks did), just as it is free to offer its opinion that the allegations are implausible (as other Fox News hosts and other networks did)."

Fox News is defending its coverage by claiming that the network was merely covering the statements made by the then-president and his legal team, which were newsworthy.

"Dominion instead advances the radical position that it does not matter if the allegations were accurately presented as allegations, or even if they were presented as false allegations," Fox News lawyers wrote. "According to Dominion, the mere act of repeating them, or allowing the President's lawyers to articulate them, makes the press as liable as those leveling the allegations."

Fox News producer alleges network "coerced" her into giving misleading testimony in Dominion suit

Lawyers for Fox stated in their filing that if Dominion's goal is to prosecute the network for repeating the Trump camp's claims, then they should be bringing this action against every news agency that reported on the former president's allegations as well.

Dominion's attorneys dispute that point: "Media companies may always report the truth, including reporting on false allegations while explaining that the allegations are false, and Dominion did not sue the many media companies that did just that in 2020."

"Some shows stopped airing the allegations because they knew they would have to 'tell the truth' if they did so," Dominion wrote. As an example, they point to Fox News host Laura Ingraham who stated in her deposition that by Nov. 12, she "made the decision not to air the false allegations of Dominion." The company points out that she never made a public admission about their falsehood to her audience.

Exhibits in the case show that some of Fox News' top executives had harbored misgivings about what was being said on the network after the 2020 election, and even after President Biden had been inaugurated. Hosts, including Tucker Carlson and Ingraham, also expressed concerns about guests who made claims about voter fraud, according to court records.

Attorneys for the cable news giant argued in a counterclaim unsealed in February that the lawsuit is an assault on the First Amendment. Fox claimed Dominion advanced "novel defamation theories" and is seeking a "staggering" damage figure.

At the beginning of Tuesday's hearing, Judge Davis made clear to the parties that he had not "pre-decided" whether the case will go to trial or not. Fox will continue its oral argument Wednesday morning, and both legal teams will then have the opportunity for rebuttal.

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