Lawyers for Fox Corp faced a skeptical judge on Tuesday as they sought to block a US$1.6-billion defamation lawsuit by Dominion Voting Systems from going to trial, while the voting-technology company accused Fox News of knowingly airing vote-rigging claims that the network knew were false.
Both sides made presentations during a hearing in Wilmington before Delaware Superior Court Judge Eric Davis, asking him to rule in their favour on various legal questions rather than proceeding to a full trial scheduled to start on April 17.
The judge peppered a Fox lawyer with questions about its defence against Dominion’s assertion that the network knew that allegations by former president Donald Trump and his lawyers of vote-rigging in the 2020 U.S. election were false but continued putting the claims on the air anyway in pursuit of ratings.
Dominion argues that this meets the “actual malice” standard to win a defamation case under which a plaintiff must prove a defendant knowingly spread false information or acted with reckless disregard for the truth. Fox lawyer Erin Murphy disagreed.
Fox’s lawyers also invoked the legal doctrine of “neutral reportage,” which holds that the press cannot be held liable for publishing newsworthy allegations in a neutral way.
Justice Davis said there was tension between Fox’s arguments on “actual malice” and “neutral reportage.”
“To me, it doesn’t seem intellectually honest that you apply actual malice and say there’s neutral reporting privilege,” Justice Davis said, adding: “How can you be neutral if you’re knowingly doing false things?”
Mr. Murphy sought to provide context for the defamatory statements alleged by Dominion and argued that reasonable viewers understood that the claims aired on Fox News were mere allegations. The Fox News statements cited by Dominion included a Twitter post by former Fox Business host Lou Dobbs that included pro-Trump hashtags.
“You’re saying he’s a neutral reporter?” Justice Davis asked Mr. Murphy, who responded that Mr. Dobbs was not being neutral in his support for Mr. Trump but did not write the hashtag #DominionVoterFraud.
Dominion sued Fox Corp and Fox News in 2021, accusing them of ruining its reputation by airing false claims by Mr. Trump and his lawyers that the Denver-based company’s voting machines were used to rig the outcome of the election against him and in favour of Democrat Joe Biden. Fox has argued that coverage of these claims was inherently newsworthy and protected by the U.S. Constitution’s First Amendment guarantee of press freedom.
It is one of the most closely watched defamation cases involving a major U.S. media organization in years, pitting the influential cable news network that features conservative commentators against a company that claims Fox’s coverage destroyed its business.
Both sides are seeking summary judgment – asking the judge to decide the case in their favour before it goes to a jury trial. Justice Davis said he does not plan to rule from the bench and will issue a written opinion some time later. The hearing is due to resume on Wednesday.
‘RELEASE THE KRAKEN’
In their presentation to the judge, Dominion’s lawyers said internal Fox communications prove that the network repeatedly hosted guests who it knew were peddling “reckless” and “completely crazy” falsehoods because it was losing viewers to far-right media competitors.
“They chose to let the story be out there – to let out the hoax, to release the Kraken,” lawyer Rodney Smolla said, referring to a nickname for Sidney Powell, who was a lawyer for Mr. Trump. “And why? Because Fox viewers were abandoning Fox.”
Justice Davis seemed particularly interested in whether 20 allegedly defamatory statements cited by Dominion were facts, opinions or a mix of the two. He also sought clarity on Dominion’s legal theories.
“Are you saying that Fox adopts Trump’s statements just because the president said at a press conference that the election was a hoax?” Justice Davis asked.
Lawyer Justin Nelson answered no, saying Dominion’s allegation is that Fox knew Mr. Trump’s lawyers were going to make false claims but hosted them on its shows anyway.
Separately, a Fox News producer filed a lawsuit on Monday accusing the network’s lawyers of pressuring her to provide misleading testimony in the Dominion case.
Abby Grossberg, who was head of booking for Fox News host Tucker Carlson, said coaching and intimidation by Fox lawyers before her deposition left her “feeling pressured not to name names or to implicate others, in particular prominent male on-air personalities and Fox News executives.”
Fox said in a statement on Tuesday that Ms. Grossberg’s “allegations in connection with the Dominion case are baseless and we will vigorously defend Fox against all of her claims.”