A jury in the US has been selected to hear a voting machine company’s $US1.6 billion ($2.38 billion) defamation lawsuit against Fox News in a trial that will test First Amendment protections and expose the network’s role in spreading the lie of a stolen 2020 presidential election.
Jury selection came a day after the judge granted a one-day delay that offered time to see if the two sides could work out a settlement.
Dominion Voting Systems aims to hold Fox accountable for airing false allegations of election fraud that continue to roil US politics.
Delaware Superior Court Judge Eric Davis gave no explanation for the brief delay on Tuesday (Wednesday morning AEST).
The case will put under scrutiny the libel standard that has guided US media outlets for nearly six decades, reveal behind-the-scenes activity at Fox News in the weeks after the 2020 election and shed light on the flow of misinformation that turned into a tidal wave after the election, which then-President Donald Trump lost to Joe Biden.
Fox News stars such as Tucker Carlson and Sean Hannity, as well as company founder Rupert Murdoch, are expected to testify during the six-week trial.
Dominion claims New York-based Fox News and its parent company, Fox Corp, essentially bulldozed the voting company’s business and subjected employees to threats by falsely implicating it in a bogus conspiracy to rig the election against Trump.
In the weeks after Election Day, prominent Fox News hosts brought on Trump allies who falsely claimed that Dominion’s machines were programmed to snatch votes away from the Republican incumbent and pad the Democratic challenger’s total.
Many of Fox’s hosts and executives didn’t believe the claims but allowed them to be aired nevertheless.
“Fox spread and endorsed one of the most damaging lies in this country’s history,” Dominion’s lawyers wrote in a court filing.
Pointing to communications among Fox figures, from executives to fact-checkers, Dominion argues that the network knowingly amplified falsehoods for the sake of ratings.
Fox says it simply reported on Trump’s challenges to the election results and let viewers hear from his lawyers and allies.
“Dominion’s lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights,” the network said in a statement last week.
Fox said its hosts sometimes alluded to a need for evidence to back up the allegations and noted that Dominion denied the claims.
Federal and state election officials, exhaustive reviews in battleground states and Trump’s own attorney general found no widespread fraud that could have changed the election outcome. Nor did they turn up any credible evidence that the vote was tainted.
Dozens of courts, some with Trump-appointed judges, also rejected his fraud allegations. In the Dominion case, Davis declared it was “CRYSTAL clear” that the claims about the voting machine company weren’t true.
A key question for the jury is whether Fox News acted with “actual malice”, a legal standard that applies when public figures sue news outlets for defamation. The standard, derived from a 1964 Supreme Court case, means knowingly publishing or airing something false or operating with “reckless disregard” for whether it’s true.
Dominion has pointed to text and email messages in which Fox insiders discounted and sometimes overtly mocked the vote manipulation claims. One Fox Corp vice president called them “MIND BLOWINGLY NUTS”.
Carlson, Fox News’ biggest star, even expressed scorn for Trump, whose supporters formed the core of the network’s viewers. Text exchanges revealed as part of the lawsuit show Carlson declaring, “I hate him passionately,” and saying that “we are very, very close to being able to ignore Trump most nights”.
Murdoch, the Fox News founder and Fox Corp chairman, found the election claims “really crazy,” according to an email he sent while watching a news conference that Trump lawyers gave on November 19, 2020.
“Terrible stuff damaging everybody, I fear. Probably hurting us too,” Murdoch told Fox News CEO Suzanne Scott in another email that day.
Yet talk of the alleged conspiracy continued to air on Fox for weeks after the voting.
In his deposition for the case, Murdoch acknowledged the 2020 presidential election was fair while also acknowledging that some of Fox’s hosts seemed to endorse the bogus election claims.
The network maintains that Dominion cherry-picked from private messages and broadcast transcripts and depositions of various Fox players, while brushing past other comments and context more favourable to Fox. The network also maintains that Dominion’s claims of lost business are massively inflated.
Fox found itself in hot water with the judge as the trial neared. Davis rapped the network last week for what he saw as “misrepresentations” and belated disclosures of some information in the case. On Friday, a Fox attorney apologised in a letter to the judge for what the attorney described as a misunderstanding about the disclosure of Murdoch’s formal role at Fox News.