Fox prepares to face trial in $1.6bn Dominion defamation case

Rupert Murdoch’s Fox is set to face claims in court that it knowingly aired false conspiracy theories about the 2020 US election, in what is expected to be one of the most consequential defamation trials in a generation.

The trial, which was due to begin on Monday, was postponed by a day late on Sunday evening, following a report that the two sides were engaged in eleventh-hour settlement discussions. Proceedings were set to begin Tuesday morning with final jury selection and then opening arguments.

The conservative Fox News network and its parent company, Fox Corp, were first sued in Delaware for $1.6bn by voting machine maker Dominion in 2021. At the centre of the case are claims made on the air that Dominion’s devices were rigged in favour of president Joe Biden, its employees were bribing election officials, and that it had worked for the late Venezuelan leader Hugo Chávez.

The standard for proving defamation in the US is notoriously high. Even so, several legal analysts said Fox faces an “uphill battle” as it tries to avoid heavy damages and preserve its reputation after pre-trial filings exposed a sometimes frantic and fractious behind-the-scenes newsgathering process.

Evidence gathered by Dominion revealed some of Fox News’ stars and executives did not wholly believe the allegations of election fraud, but continued to air them as they worried about losing rightwing viewers to more radical outlets such as Newsmax and One America News.

Judge Eric Davis, who is overseeing the case, ruled in March that the statements aired on Fox were false and that the US Constitution’s First Amendment did not shield those who deliberately broadcast lies.

He added that “although it cannot be attributed directly to Fox’s statements, it is noteworthy that some Americans still believe the election was rigged”.

Davis left it to a jury — which will be selected from the heavily Democratic New Castle County — to decide whether Fox acted with “actual malice” in repeatedly broadcasting the claims about Dominion, and if so whether damages were incurred.

During the six-week trial, jurors are expected to hear testimony from the 92-year-old Murdoch, several Fox executives, as well as Fox presenters Sean Hannity, Tucker Carlson and Laura Ingraham.

Denver-based Dominion, which like Fox is incorporated in Delaware, will seek to prove Fox put the likes of Trump lawyer Sidney Powell on air while knowing there was no evidence to prove her claims of election fraud.

In pre-trial filings, Dominion cited a text by Carlson sent days after the election saying Powell “is lying”, and a producer referring to her as a “fucking nutcase”.

For its part, Fox plans to call Maria Bartiromo, Lou Dobbs and Jeanine Pirro, whose shows are at the heart of Dominion’s claims, and seek to demonstrate that they did not know they were broadcasting false statements at the time.

Fox will also argue that Dominion, whose devices were used in 28 states in the 2020 election, did not suffer damages that were anywhere close to $1.6bn, alleging that the company has not lost any business.

While acknowledging Dominion’s case was strong, Yonathan Arbel, a law professor at the University of Alabama, said he worried about the company “winning too much, partly because the factual statements here that are defamatory are based on statements made by guests”.

He added a large payout might “send the wrong message that a journalist can’t bring on a speaker that is known to be unreliable”, when it is part of the job of the media to expose such individuals’ weak arguments.

In a statement ahead of the trial, Fox said the lawsuit was “a political crusade in search of a financial windfall” and claimed “the real cost [of a loss] would be cherished first amendment rights”.

It added that Dominion had pushed “misleading information to generate headlines” while Fox was “steadfast in protecting the rights of a free press”.

Dominion said it was a “strong believer in the first amendment”, but the law “does not shield broadcasters that knowingly or recklessly spread lies”.

It added that “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”.