Heading to toward an April 17 trial start in the $1.6 billion matter, Delaware Superior Court Judge Eric M. Davis today denied all of Fox’s attempts to have the case tossed out, including on grounds that hosts and guests were engaging in opinion or neutral reporting on claims of vote rigging advanced by Donald Trump and his allies.
Fox News Network “is not a passive entity,” the judge stated in a direct rebuttal of the outlet’s main defense. “FNN controls what is broadcast on its various networks. FNN does this through its employees as agents of FNN. Thus regardless of who within FNN is responsible for publication, FNN did in fact publish the statements to its viewers.”
Conversely, Judge Davis granted a portion of Dominion’s own summary judgement motion and denied other parts. (Read his ruling here)
From the beginning, Dominion has claimed that Fox intentionally and knowingly spreading false claims about the company amidst the now indicted Trump’s bellicose assertions the 2020 election was stolen for Joe Biden. FNC has said it was covering a newsworthy topic ultimately in the public interest and doing its job. Though hordes of embarrassing (to put it mildly) private texts, emails and other correspondence from the likes of Tucker Carlson, Sean Hannity, Laura Ingraham, Fox execs and Murdoch himself clearly paint a portrait of an organization saying one thing to its loyal viewers and saying something very different when the cameras were off.
A point that Judge Davis made bluntly in his 130-page ruling released Friday:
Through its extensive proof, Dominion has met its burden of showing there is no genuine issue of material fact as to falsity,” Fox therefore had the burden to show an issue of material fact in turn. Fox failed to meet that burden. The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true (Italics, capitalization and bolding from Judge Davis) Therefor the Court will grant summary judgment in favor of Dominion on the element of falsity.
Focusing further, Judge Davis’ ruling narrows the scope of what the jury will consider to the culpability of Fox Corp. for defamation, whether Fox Corp. or Fox News engaged in actual malice, and whether Dominion incurred any damages.
A spokesperson for Dominion said to Deadline today: “We are gratified by the Court’s thorough ruling soundly rejecting all of Fox’s arguments and defenses, and finding as a matter of law that their statements about Dominion are false. We look forward to going to trial.”
“The Court has rejected Fox’s First Amendment ‘newsworthy allegation’ defense and held that Dominion’s lawsuit is consistent with the First Amendment,” the spokesperson added.
“This case is and always has been about the First Amendment protections of the media’s absolute right to cover the news,” said a Fox News Media spokesperson Friday after the ruling was released. “Fox will continue to fiercely advocate for the rights of free speech and a free press as we move into the next phase of these proceedings.”
In his lengthy ruling, Davis rejected several of Fox’s defenses: That it was merely reporting on undoubtedly newsworthy allegations, including those made on air by Sidney Powell, who at one time was a member of the Trump legal team. But the judge said that the court was bound by existing precedent that does not recognize a “neutral report privilege,” shielding reporters from liability for neutral reporting on even in defamatory allegations.
“Even if the neutral report privilege did apply, the evidence does not support that FNN conducted good-faith, disinterested reporting,” the judge wrote, noting that Fox News’s “failure to reveal extensive contradicting evidence from the public sphere and Dominion itself indicates its reporting was not disinterested.”
Davis also dismissed Fox’s arguments that it was shielded from liability given to journalists for reporting on official proceedings, like lawsuits and court hearings. He noted that many of the allegations advanced by Trump allies on Fox News “were made before any lawsuit had been filed in a court.”
Dominion has identified 20 instances of election fraud claims made against the company on Fox News airwaves. Fox had argued that the statements were opinion, and therefore shielded from defamation claims, and the average viewer “would understand that the statements, in the immediate and broader social context in which the statement is made, convey opinions, not fact.”
In his opinion, though, Davis went one by one through the statements to conclude that the statements were either facts or mixed opinion, siding with Dominion.
Davis wrote that the statements “are defamatory per se because the Statements claimed that Dominion committed election fraud; manipulated vote counts through its software and algorithms; is founded in Venezuela to rig elections for dictator Hugo Chavez; and paid kickbacks to government officials who used the machines in the Election. Dominion contends that the Statements strike at the basic integrity of its business. That alone makes the Statements defamatory per se. The Statements also seem to charge Dominion with the serious crime of election fraud. Accusations of criminal activity, even in the form of opinion, are not constitutionally protected.”
Jury selection for the trial in Joe Biden’s adopted home state is set to start on April 13.
Much of the attention to the case has focused on the release of correspondence from Fox News and Fox Corp. personnel, showing the scramble by the network to respond to a backlash in the aftermath of the election that had Trump recommending that his supporters watch smaller rivals Newsmax and One America News Network. Fox News had been the first network to project that Biden would win Arizona, the first sign on election night that Trump would lose – a fact that enraged the then POTUS.
In his opinion, Davis referred to some of the text messages, including one to Hannity from Carlson, upset that Fox News’ Jacqui Heinrich had fact checked Trump’s claims about Dominion. “Please get her fired. . . . It’s measurably hurting the company. The stock price is down,” Carlson wrote.