Fox News defamation case headed to trial after judge rejects motion to dismiss

A Delaware judge denied Fox News’ motion to dismiss Dominion Voting Systems’ $1.6-billion defamation suit against the network on Friday, sending the case to trial.

A jury will be asked to determine whether the network committed actual malice when it presented false voter fraud allegations in the 2020 election.

The ruling by Judge Eric Davis granted Dominion’s contention that Fox News published false information about the voting machine company in the weeks after the election, when outgoing President Donald Trump and his allies spread allegations of fraud.

“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,” Davis wrote in his order.

In the wake of the election, Trump’s attorneys repeatedly said Dominion manipulated votes to swing the race to President Joe Biden and made other false statements about the company’s ownership.

Davis did not grant summary judgment to Dominion on the company’s claims that Fox News acted with malice when it presented the falsehoods, an issue that now will be weighed at trial. The jury also will decide if Dominion is entitled to any damages.

“The parties have generated a record that shows disputed material facts,” Davis wrote.

The jury trial in Delaware is expected to begin April 17, in what is likely to be a media spectacle, unless the two sides reach a settlement.

Executives and high-profile Fox News anchors, who have already given explosive deposition testimony, could be called to the witness stand to discuss their actions in public, under oath.

“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,” a Dominion representative said. “We look forward to going to trial.”

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A Fox News representative said, “This case is and always has been about the 1st Amendment protections of the media’s absolute right to cover the news. 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.”

Fox News has argued that the allegations presented on the network by Trump and his attorneys were newsworthy — even if untrue — and that the network’s reporting was protected by the 1st Amendment.

A Dominion representative said the Davis ruling “has rejected Fox’s 1st Amendment ‘newsworthy allegation’ defense and held that Dominion’s lawsuit is consistent with the 1st Amendment.”

Fox News also cited “neutral reportage privilege,” which protects media organizations against libel claims if they accurately and objectively report newsworthy charges made against public figures as part of an ongoing controversy.

Davis rejected that defense, saying it fails to shield Fox News from liability.

Dominion’s legal team countered that Fox News has gone far beyond that realm because it presented the voter fraud claims and Dominion’s alleged involvement well after the allegations of fraud were dismissed by government agencies, producers and journalists inside the network.

Davis ruled “the record is clear” that Fox News aired the statements and that in defamation claims, “All who take part in the procurement, composition and publication of a libel are responsible in law and equally so.”

Fox News has argued that much of the evidence and deposition testimony that has come out in court filings has been “cherry picked” by Dominion lawyers and taken out of context.

But even with the context provided, Davis rejected every assertion by Fox News that comments made on air about Dominion — such as former Fox Business Network host Lou Dobbs describing the 2020 election as a “cyber Pearl Harbor” — were opinions and that no reasonable viewer would accept them as facts.

Davis also noted that the Fox News hosts’ reactions to some of the false assertions made by Trump lawyers Sidney Powell and Rudy Giuliani created the perception that they were factual.

“While (anchor Maria Bartiromo) poses some of the statements as hypothetical questions to Mr. Giuliani or Ms. Powell, such as ‘[a]re you saying the states that use that software did that?’ Ms. Bartiromo accepts the explanations offered by Ms. Powell and Mr. Giuliani as facts by making affirmative follow-up statements like ‘Right.’ or ‘Wow. This is explosive,’” Davis wrote.

Davis came to the same conclusion when MyPillow owner Mike Lindell appeared on “Tucker Carlson Tonight” on Jan. 26, 2021. The booking was aimed at placating the well-known 2020 election denier, who is a major ad buyer on the network.

Lindell used the appearance to advance his belief that the 2020 election was stolen. Carlson, who said privately he had seen no evidence of fraud claims and was disgusted by the falsehoods repeated by Powell, did nothing to stop Lindell.

“The language used in the segment, such as ‘we have a machine, the Dominion machine … was developed to steal elections, and being used in the states that are involved’ and ‘I have the videotape, the documents, the hard drive. I’ve got every piece of evidence. And I’ve got a mountainful of evidence’ make factual assertions that evidence regarding Dominion’s involvement in the election fraud actually exists,” Davis wrote.