Fox, Dominion await judge’s ruling in $1.6 billion defamation suit

A Delaware judge has yet to make a key ruling in Dominion Voting System’s $1.6 billion defamation suit against Fox Corp. and its right wing cable networks.

On Tuesday and Wednesday, attorneys for both Fox and Dominion laid out their cases in court, urging Judge Eric Davis in Delaware’s Superior Court to make a ruling without going to a jury trial next month.

Davis had told the attorneys as early as Tuesday he was still weighing their arguments and wasn’t sure what he could rule on ahead of the trial. He also noted any questions he asked during the hearing shouldn’t indicate which way he was leaning.

A Dominion spokesperson said Wednesday the company is looking forward to the court’s ruling.

“Despite the noise and confusion that Dominion has generated by presenting cherry-picked quotes without context, this case is ultimately about the First Amendment protections of the media’s absolute need to cover the news,” a Fox spokesperson said in an emailed statement Wednesday. “Fox will continue to fiercely advocate for the rights of free speech and a free press.”

In recent weeks, a trove of evidence gathered by both sides – thousands of pages of full excerpts of testimony from depositions, text messages and emails – has been published in both sides’ push for summary judgement.

Dominion brought the defamation lawsuit against Fox Corp. and its right wing cable networks Fox News and Fox Business, arguing the channels and their hosts pushed false claims that its voting machines were rigged in the 2020 election that saw Joe Biden triumph over Donald Trump.

Dominion’s attorneys on Tuesday noted nearly two dozen instances in which they believe hosts on Fox News and Fox Business broadcasts repeated claims of election fraud – and continuously had guests on such as Trump attorneys Rudy Giuliani and Sidney Powell who pushed those claims – as if they were fact. To support this, they called on the reams of text messages and emails in which hosts such as Tucker Carlson, communicate their doubts about the guest and election fraud claims.

Davis on Tuesday urged Dominion’s lawyers to point to statements made on air to prove their defamation case rather than what was said in internal communications.

The attorneys homed in on broadcasts led by Lou Dobbs and Maria Bartiromo, as well as some from Carlson, Sean Hannity and Jeanine Pirro, in which claims of issues with Dominion’s software algorithms, bribery and cybersecurity were repeated on air after they were proven false.

Tweets from Dobbs during the time were also called on as part of evidence. “There seems to be a Dobbs problem,” Davis, the judge presiding over the case, later said to a Fox attorney.

Dominion attorney Justin Nelson said Tuesday that it has lined up such examples as the voting machine company has to prove that for each broadcast there was at least one person “who knew the charges were false or recklessly disregarded the truth.”

Dominion lawyers also pointed to Fox’s so-called “brain room,” where fact checking for its programs is done. Dominion alleges it was ignored by Fox executives and hosts.

Dominion sought to have the judge rule in its favor as it built a case that Fox News, and its parent company’s executives, acted with malice in parroting false election claims and continuously featuring guests like Powell and Giuliani.

Fox’s attorneys shot back that Fox News hosts were reporting on newsworthy allegations of election fraud claims – which stemmed from Trump – and whether they believed in the claims or what their guests were saying didn’t show they acted with malice. (Trump’s false claims of election fraud are at the center of multiple criminal probes.)

On a slide in court Tuesday, Fox showed that the basis of its case was “whether the press accurately reports the allegations, not whether the underlying allegations are true or false.” Fox attorney Erin Murphy also built the media company’s case around the notion that “any reasonable viewer” of the news would be able to discern what was allegations or facts on Fox’s networks.

Davis, the judge, raised various questions during Murphy’s description of Fox’s case, questioning their definition of “a reasonable viewer,” and if “fact checkers don’t matter” concerning Fox’s “brain room.”

Murphy, who said “a reasonable viewer” is someone who knows the difference between a piece of news and opinion, pointed to when Carlson featured MyPillow CEO Mike Lindell, an ally of Trump who promoted conspiracy theories tied to the election. Any “reasonable viewer would be puzzled on anything he is talking about.”

Murphy also said Tuesday another key element was to prove it was Fox News publishing these claims rather than parent company Fox Corp., which is being sued along with its networks.

The hearing came after the release of revelatory documents in recent weeks, which have shown emails, text messages and testimony from top Fox hosts and executives that show they were skeptical about the claims being made on air.

Chairman Rupert Murdoch said some anchors parroted false fraud claims in the months following the election. The evidence also shows Murdoch was in contact with Fox News CEO Suzanne Scott during the time.

Dominion has argued that Fox and its TV channels and talent falsely claimed that its voting machines rigged the results of the 2020 election. Fox has consistently denied the claims it knowingly made false claims, and has argued it is protected by the First Amendment.

First Amendment watchdogs and experts have been closely watching the case.

In order to win a defamation lawsuit, a plaintiff needs to show that the individual or business they are suing made false statements that caused harm, and that it acted with “actual malice,” meaning the speaker knew or should have known what they were saying to be untrue.

Libel lawsuits are typically focused on one falsehood, but in this case Dominion provides a lengthy list of examples of Fox TV hosts making false claims even after they were proven to be untrue. Media companies are often broadly protected by the First Amendment.

These cases are often settled out of court or quickly dismissed by a court judge, but neither said has had such discussions, CNBC previously reported.