Judge Limits Fox’s Options for Defense in Dominion Trial
WILMINGTON, Del. — A judge ruled on Tuesday that Fox News could not argue that it broadcast false information about Dominion Voting Systems on the basis that the allegations were newsworthy, limiting a key line of defense for the network as it faces the beginning of a potentially costly defamation trial next week.
The judge, Eric M. Davis of Delaware Superior Court, also ruled that Dominion could not reference the Jan. 6, 2021, assault on the Capitol except in very narrow circumstances, saying that he did not want jurors to be prejudiced by events that weren’t relevant to the central question in the case: Did Fox air wild claims about Dominion’s purported involvement in a conspiracy to steal the 2020 presidential election from Donald J. Trump knowing that they were lies?
In the first of two days of pretrial hearings, Judge Davis set many of the parameters that will govern how the trial is run, including what kinds of arguments the 12-person jury can hear and what questions lawyers may ask during jury selection to weed out those they believe will not be impartial.
The hearing covered matters large and seemingly small, from the application of the First Amendment in the case to how jurors may take notes.
Judge Davis said he would allow lawyers to ask potential jurors about their cable news viewing habits and whether they watched Fox News programs — or intentionally avoided them. He will not, however, permit questions about how someone voted.
The lawsuit, in which Dominion is seeking $1.6 billion in damages, is teeing up a major test of the First Amendment and, depending on the outcome, could renew questions about whether defamation law adequately protects victims of misinformation campaigns.
While legal experts have said that Dominion’s case is unusually strong, defamation suits are extremely difficult to win because the law essentially requires proof of the state of mind of the defendants. Dominion’s burden will be to convince a jury that people inside Fox acted with actual malice, meaning that they either knew the allegations they broadcast were false but did so anyway, or that they acted so recklessly they overlooked facts that would have proven they were wrong.
Fox has argued that while it understood many of the claims made by its guests about Dominion were false, they were still worth covering as inherently newsworthy. Fox’s lawyers have taken the position that there is nothing more newsworthy than claims by a former president of the United States that an election wasn’t credible.
But Judge Davis disagreed.
“Just because someone is newsworthy doesn’t mean you can defame someone,” he said, referring to pro-Trump lawyers like Sidney Powell and Rudolph W. Giuliani, who appeared repeatedly on Fox News and Fox Business in the weeks after the 2020 election and linked Dominion to various conspiracy theories.
The judge admonished Fox’s lawyers, saying that they cannot make the argument that the false statements about Dominion came from guests like Ms. Powell and not from Fox hosts. That argument is irrelevant, he said, because the fact remains that Fox is still responsible as the broadcaster.
“It’s a publication issue, not a who-said-it issue,” he said.
Dan K. Webb, a lawyer representing Fox, explained that hosts would testify that they weren’t certain about the truth of the allegations but covered them because the former president and his lawyers said they could prove them.
“The hosts will say during that time period, 15, 20 days, they were careful not to repeat the allegation,” Mr. Webb said.
Judge Davis responded, “Just because they say it, doesn’t mean it’s true.”
Fox has also made the argument that its actions were not defamatory because many hosts and guests said on air that there was a lack of convincing evidence that suggested widespread voter fraud.
Judge Davis rejected this position, too.
“You can’t absolve yourself of defamation by merely putting somebody on at another time to say something different,” he said.
In asking for such a large settlement against Fox, Dominion has cited the death threats its employees have received. People have shown up outside its Denver headquarters armed and left voice mail messages threatening to blow up its offices.
Judge Davis on Tuesday limited how Dominion can reference those threats in front of jurors, ruling that it may not mention their specific content. He said that he did not want to leave jurors with the impression that Fox was responsible for the actions of third parties.
The trial begins on Monday, with jury selection expected to wrap up by the end of this week.
Before Tuesday, the judge had already ruled that Dominion could compel several high-profile Fox executives and hosts to testify in person, including Rupert Murdoch, whose family controls the Fox media empire; Suzanne Scott, the chief executive of Fox News Media; and the Fox News personalities Tucker Carlson, Sean Hannity and Jeanine Pirro.
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