The judge in the Dominion Voting Systems’ defamation case against Fox News signaled his interest Wednesday in the duty that executives like Rupert Murdoch might have to stop known liars from going on-air, and suggested he might force Murdoch to testify.
Delaware Superior Court Judge Eric Davis repeatedly pressed a Fox News lawyer about the role of top executives in the editorial process. His questions dovetailed with Dominion’s claim that Murdoch knowingly let Fox News hosts book guests that would lie about the 2020 election.
He asked Fox lawyers if Murdoch and other executives “had the power to stop” TV hosts from booking pro-Trump guests that they’ve deemed “problematic” because of their past election lies.
But Erin Murphy, who represents Fox News and its parent company, insisted that the Murdochs weren’t involved in the broadcasts where Dominion was potentially defamed. She argued that the voting machine company has fallen far short of proving that the Murdochs played any direct role, and thus they can’t be held liable.
“It’s not enough to show that (these executives) have the ability to step in,” Murphy said, telling the judge that “you have to bring it home to the person who is directly involved” and determine if “the one who makes the final call” acted with actual malice.
The voting systems company wants Davis to force Murdoch and his son, Fox Corporation CEO Lachlan Murdoch, to testify at trial, which is set to begin next month. Fox opposes the request.
“(Rupert Murdoch) holds a special role at Fox Corporation, that he may be able to be compelled to be here,” Davis said, though he stressed that he hasn’t made decisions on witnesses yet. He also said he’d consider letting some out-of-state witnesses testify live over video-conferencing.
He added that “judges prefer live testimony if the witnesses are available.”
After two days of pretrial hearings this week, the next step is for Davis to rule on “summary judgement.” Both sides have argued that they should be declared the winner of the case, without even holding a trial. Davis could issue his ruling at any time, and jury selection is scheduled to begin April 13.
Dominion filed a $1.6 billion defamation suit against Fox News and its parent company, Fox Corporation, claiming that they destroyed its reputation by promoting the lie that it rigged the 2020 election to stop Donald Trump from serving a second term. The Fox entities deny wrongdoing, say they’re “proud” of their 2020 election coverage, and claim the $1.6 billion figure is wildly inflated.
Fox News has maintained that it is “proud” of its 2020 coverage and has said Dominion’s lawsuit could weaken the First Amendment. Fox Corporation claims Dominion overstated its role in Fox News’ editorial coverage, and asked to be dropped from the suit. Davis rejected their motion.
Clash over $1.6 billion damages claim
On Wednesday, Fox’s lawyers told the judge that Dominion had goosed the numbers to reach the eye-popping $1.6 billion figure. Murphy, the Fox lawyer, argued that Dominion is trying to have it both ways.
First, she said, Dominion had claimed that “nobody could have believed” that it rigged the 2020 election, and therefore Fox was reckless when it gave airtime to those allegations. But when it was time to calculate damages for the lawsuit, Dominion had claimed they’re “going to go out of business because everybody believes this, and all of (their) customers believe this,” she said.
“There’s a bit of cognitive dissonance,” Murphy said.
She went on to argue that Dominion’s calculations were inflated because they assumed they “would’ve succeeded every single time in the future” when seeking new business. Fox has argued in court filings that Dominion is trying to generate media attention with the $1.6 billion figure, and noted that Dominion generated less than $11 million in annual earnings before 2020.
In a statement after the hearing, a Dominion spokesperson told CNN that its calculations for damages were “based on industry-standard valuation metrics and conservative methodologies.”
Teed up for trial
It’s possible that the parties will reach an out-of-court settlement before the trial begins.
Still, the courtroom showdown that unfolded Tuesday and Wednesday served as a preview of what the trial might look like. A wide array of legal experts have described Dominion’s lawsuit as one of the most consequential defamation and First Amendment cases in recent memory.
The hearings came weeks after hundreds of explosive emails and texts were made public as part of the case. These internal Fox messages showed that many of the on-air personalities, producers, editors, executives and even corporate owners thought the allegations against Dominion were “nuts,” “kooky” and “BS” – but the network gave airtime to the theories anyway.
Dominion lawyers made use of these exhibits during the pretrial hearings this week. They showed text messages sent by Fox News star Tucker Carlson, where he accused Trump lawyer Sidney Powell of being a “liar.” They also showed emails that Murdoch sent to other executives.
Evidence in the case – mainly from the emails and texts – has already established that Fox News executives, producers and hosts thought Powell and Rudy Giuliani were lying when they claimed Dominion flipped millions of votes to rig the election against then-President Donald Trump. Other internal Fox emails revealed that Rupert Murdoch thought Trump lost the election fair and square, and never believed the Dominion-related conspiracy theories.
On Tuesday, the judge had tough questions for Fox and challenged some of their legal theories. He appeared to embrace some of Dominion’s arguments that specific Fox News personalities supported right-wing conspiracy theories about the 2020 election and weren’t acting as neutral journalists. But he also stressed that he hadn’t made a decision yet on “summary judgment.”