Image for Dominion Defamation Trial Against Fox Begins
The defamation trial brought by Dominion Voting Systems against Fox News centers on whether a news operation can broadcast information it knows may be false.

Case Pits First Amendment Against Malicious Misinformation

The Dominion Voting Systems defamation trial against Fox News begins next week in what promises to be a showdown between the First Amendment and intentional misinformation. One journalist called the trial the “libel law equivalent of the Super Bowl”.

“I’ve been involved in hundreds of libel cases and there has never been a case like this,” Martin Garbus, a veteran First Amendment lawyer., told The New York Times. “It’s going to be a dramatic moment in American history.”

In its lawsuit filed in early 2021, Dominion claims Fox continued to air interviews with guests spouting unproven conspiracy theories about a stolen election and refused to retract them. Fox News contends its coverage was newsworthy and the network isn’t responsible for the truthfulness of claims. “Ultimately, this case is about First Amendment protections of the media’s absolute right to cover the news,” the network claims.

The Delaware Superior Court judge hearing the case issued several pre-trial rulings this week that foreshadowed the fault lines that will be explored in the trial. Notably, Judge Eric M. Davis ruled Fox News cannot argue it knowingly broadcast false information because it was “newsworthy”.

To avoid prejudicing the jury, Davis also ruled Dominion’s attorneys cannot reference the January 6 Capitol attack and Fox News’ attorneys cannot ask potential jurors who they voted for in the 2020 presidential election.

Did Fox air false claims about Dominion’s involvement in a conspiracy to steal the 2020 presidential election knowing they were lies?

Davis said he wants witnesses and evidence focused on the central issue in the $1.6 billion defamation lawsuit: Did Fox air false claims about Dominion’s purported involvement in a conspiracy to steal the 2020 presidential election from Donald J. Trump knowing that they were lies?

Internal Fox emails, which Dominion’s attorneys obtained through pre-trial discovery and have been shared publicly, reveal Fox news hosts privately expressed doubts that Rudy Giuliani, Sidney Powell and Mike Lindell possessed evidence proving election fraud involving Dominion’s voting machines. The emails include conversations among Fox personnel about continuing to air dubious claims to maintain viewer ratings.

Misinformation can easily morph into disinformation, the intersection where free speech can hit a road bump with defamation claims. That intersection may become more distinct after the trial.

Pre-Trial Rulings
In a key pre-trial instruction, Davis said Fox News cannot argue false statements about Dominion came from guests and not from Fox hosts. That argument is irrelevant because Fox is still responsible as the broadcaster, he said. “Just because they say it, doesn’t mean it’s true. Just because someone is newsworthy doesn’t mean you can defame someone.”

Dominion based its defamation claim in part on death threats against its employees and its Denver headquarters. Davis also limited what Dominion can say about the threats to avoid leaving jurors with the impression that Fox was responsible for the “actions of third parties”.

In an earlier ruling, Davis agreed to allow Dominion to compel testimony by Fox executives and news show hosts Tucker Carlson, Sean Hannity and other Fox News hosts..

Defamation lawsuits are filed when persons or organizations claim their reputations have been damaged by false statements presented as facts. There is a fine legal line between stating an opinion and defaming someone. Plaintiffs who file defamation actions must prove that statements were false and defendants expressed them intentionally.

“The statement must have been made with knowledge that it was untrue or with reckless disregard for the truth (meaning the person who said it questioned the truthfulness but said it anyhow),” according to Brette Sember, an attorney describing defamation for LegalZoom.

The standard of proof is lower for private citizens, Sember says. “There is a higher standard required if you are a public figure.” Unlike libel which involves printed misinformation, defamation or slander can occur on any medium.

There are other laws that seek to prevent consumer deception or product misrepresentation. The federal Fair Packaging and Labeling Act requires an accurate and complete description of what a product contains. The Federal Trade Commission Act prohibits unfair or deceptive acts or practices in commerce. There are numerous statutes relating to false advertising claims, deceptive pricing and hidden fees.

First Amendment and Lies
Fox believes “Dominion’s lawsuit is an assault on the First Amendment and the free press”. Lawyers for Fox also contend Dominion failed to show malice by the networks’ on-air personalities, adding Trump’s legal team wasn’t invited on air after failing to produce evidence in court of voter fraud.

Dominion says it sent 3,600 emails to Fox reporters, producers, anchors and content managers starting in November 2020 debunking false claims carried on air about its voting machines and voter fraud, but Fox never issued any retraction. Dominion’s lawyers are expected to argue Fox continued to give air time to persons making false claims to appeal to its conservative audience that was upset because Fox was the first network to declare Joe Biden the winner in Arizona.

“The truth matters. Lies have consequences,” Dominion claimed in its lawsuit. “Fox sold a false story of election fraud in order to serve its own commercial purposes, severely injuring Dominion in the process. If this case does not rise to the level of defamation by a broadcaster, then nothing does.”

Before the trial begins, Dominion has already notched a pair of victories. Judge Davis denied a motion by Fox to dismiss the case and he granted a Dominion summary judgment on some elements of the defamation claim. He said the “evidence developed in this civil proceeding demonstrates that [it] is CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true.”

That means the case will rest on whether Fox was malicious in broadcasting false claims and ignoring Dominion’s efforts to obtain retractions. Davis ruled that will be for a jury to decide. “The court does not weigh the evidence to determine who may have been responsible for publication and if such people acted with actual malice – these are genuine issues of material fact and therefore must be determined by a jury,” he wrote.

Davis added, “it is reasonably conceivable that Fox viewers wouldn’t view the statements as merely the opinions of the hosts, but either actual assertions of fact, or implications that the hosts knew something that the viewers did not.”

“The statements were capable of being proven true, and in fact the evidence that would prove the statements was discussed many times (but never presented),” Davis wrote. “Moreover, the context supports the position that the statements were not pure opinion where they were made by newscasters holding themselves out to be sources of accurate information.”