Who needs Succession when we have Dominion? A billion-dollar lawsuit involving a media tycoon, the 2020 presidential race and a potential Supreme Court showdown. But for Rupert Murdoch and Fox News this is no fictional drama. They are about to begin one of the most anticipated defamation trials in American history, over the claims that Fox broadcast about voting systems used in the 2020 presidential election. Dominion Voting Systems – whose equipment was used in 28 states during the election – is seeking damages of £1.3 billion in damages over the anti-Dominion conspiracy theories and demonstrably false claims made by Fox News on-air personalities during the weeks that followed the election. Below is a round-up of six things we know about the defamation trial thus far:
Dominion’s accusations against Fox
Dominion argues that it was defamed by Fox News when the network broadcast baseless claims that its machines ‘rigged’ the 2020 presidential election by flipping millions of Trump votes to Biden. Fox aired claims suggesting that Dominion’s software and algorithms manipulated vote counts, that it was owned by a company founded in Venezuela to rig elections for former president Hugo Chavez, and that it paid ‘kickbacks’ to government officials who used its machines in the 2020 election.
The voting company says it lost millions in unrenewed state contracts because of the controversy and that it resulted in company personnel being put in physical danger, requiring almost £500,000 in additional security measures. Dominion says that Fox knew these claims were false but ‘recklessly disregarded the truth,’ as some of its biggest stars including Sean Hannity, Tucker Carlson, Lou Dobbs, and Maria Bartiromo aired them on their shows.
Fox’s defence
Fox News has argued that it was reporting on extraordinary claims of election fraud by Trump. Its lawyers maintain that there is no evidence of a high-level conspiracy to peddle a falsehood, or that Rupert Murdoch and his colleagues were, ‘reckless with the truth.’ They have also argued that Dominion’s business wasn’t damaged and that Fox Corporation wasn’t involved in publishing the claims and therefore isn’t liable for the alleged defamation.
In the pre-trial stage Delaware Superior Court Judge Eric Davis narrowed Fox’s defence, forbidding the company to claim that what it said about Dominion was true. He also expressed frustration with the ‘bizarre’ claim of Fox attorneys that that Murdoch wasn’t an officer of Fox News, only to reverse on the eve of a trial.
There is speculation the trial might not even go ahead
Reuters, the Washington Post and the Wall Street Journal have all reported in the past 48 hours that Fox has been pursuing settlement talks. A mooted nine-figure compromise settlement is likely to be less of an issue however than Dominion’s demand for a public apology from Fox. And if they want to call off the trial they better move fast – jury selection is due to be completed today. Opening statements to the 12-member panel will begin shortly thereafter. The case which is expected to last six weeks.
The key case battleground
Davis has already concluded that Fox News and Fox Business did broadcast false claims about election-rigging. However Dominion must prove that Fox employees acted with ‘malice’ in airing the unsubstantiated claims. This is why their case will rely heavily on emails, text messages and depositions handed over in the case which show that Fox employees – including producers, journalists, TV stars and executives – questioned and mocked the claims about Dominion. The precedent for this is the ‘actual malice’ test as laid down by the Supreme Court in the 1964 case of New York Times v Sullivan. That puts the bar for defamation at a high level: the question is can Dominion pass it?
An interesting case study is offered by Tucker Carlson, the network’s biggest star. His testimony will be a flashpoint. The Dominion case has already revealed embarrassing private text messages from Carlson to another Fox employee, saying of Trump ‘I hate him passionately’. Fox’s critics have leapt on this as evidence that Fox knew they were lying to their audience. Yet Carlson says he was merely venting his frustration after a Trump staffer misled his show about ‘dead voters’ who were actually alive.
Donald Trump’s role in all this
Donald Trump did not react kindly to Rupert Murdoch’s earlier deposition back in February. After the Fox Corporation Chairman admitted that there was no truth to Trump’s claims about the 2020 election, the former president attacked him for ‘throwing his anchors under the table.’ On Monday Trump doubled down and urged Murdoch to back his claims, warning that the network is ‘in big trouble if they do not expose the truth on cheating in the 2020 election.’
The principles at stake here
The figure being demanded by Dominion is high – £1.3 billion – but the stakes are arguably even more significant. The case hinges on the protections afforded by the US Constitution and could therefore end up in the Supreme Court. Regardless of what happens in the coming weeks, some analysts believe that the pre-trial stage has already set a new precedent for American news coverage, serving as a warning to networks about what can and cannot be broadcast. A victory for Dominion could also alter the bar for defamation in the US and fuel similar lawsuits in future.
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