WILMINGTON, Del. — A courtroom drama of epic proportions is set to begin on Tuesday as Fox News defends itself against claims of defamation from Dominion Voting Systems.
The closely watched case will have major implications for defamation law, the intersection of media and politics and the future of the country’s most-watched news network.
Here are some key things to watch for during this week’s trial:
Dominion aims to expose internal crisis at Fox after the 2020 election
The voting systems provider is alleging it knowingly aired false information about its software being promoted by former President Trump and his allies in the days and weeks following now-President Biden’s 2020 election victory.
Dominion has already made public in various court filings a slew of internal communications from leading hosts and executives at Fox showing them privately insulting Trump and his defenders and throwing cold water on claims of voter fraud.
The filings also show Fox’s top talent worrying about how fact-checking Trump’s claims might anger its large audience, much of which remains supportive of the former president.
Look for Dominion’s legal team to highlight those communications and use them to argue to a jury that executives and employees at Fox acted with “actual malice,” or reckless disregard for the truth, in airing Trump’s false claims.
Fox will lean on a First Amendment defense
Fox has countered in public statements and legal filings of its own that the allegations made by Trump and his allies were newsworthy, and the network had a journalistic duty to cover them.
The cable channel has separately argued that a victory for Dominion would set a dangerous precedent in media law, making it easier for plaintiffs to sue news organizations for damages and creating a chilling effect throughout the industry.
Fox’s legal team has also suggested Dominion is inflating its financial valuation and has not suffered the fiduciary losses it says it has as a result of the allegations.
“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 ahead of this week’s trial. “While Dominion has pushed irrelevant and misleading information to generate headlines, Fox News remains steadfast in protecting the rights of a free press, given a verdict for Dominion and its private equity owners would have grave consequences for the entire journalism profession.”
Judge Eric Davis, who is presiding over the case, has already ruled that the statements in question were false. He has also rejected Fox’s attempts to throw out Dominion’s lawsuit ahead of bringing the case before a jury based on First Amendment privileges.
In a statement of its own, Dominion said the company is “a strong believer in the First Amendment and its protections.”
“As long-settled law makes clear, the First Amendment does not shield broadcasters that knowingly or recklessly spread lies,” the company said.
Fox’s biggest stars and top leaders are expected to take the witness stand
Though cameras will not be allowed in the Delaware courtroom, testimony from Fox’s leading stars would be an unprecedented moment in American media history — would be sure to make headlines.
Delaware Superior Court Judge Eric Davis also indicated during a pretrial hearing last week he was open to compelling owner Rupert Murdoch to testify if the media mogul is issued a subpoena by Dominion’s lawyers.
“Dominion clearly wants to continue generating misleading stories from their friends in the media to distract from their weak case,” a Fox spokesperson said in response to the proposition of Murdoch testifying. “Demanding witnesses who had nothing to do with the challenged broadcasts is just the latest example of their political crusade in search of a financial windfall.”
Trump will likely be watching the proceedings closely, reacting in real time
The former president has been attacking Fox for months over its coverage of Florida Gov. Ron DeSantis, who is widely expected to challenge him for the Republican nomination for president in 2024.
Trump has also blasted Murdoch and Fox more generally regarding revelations made as part of the Dominion case.
In one deposition given to Dominion’s lawyers, Murdoch acknowledged that some Fox News commentators touted Trump’s false assertions of a stolen election. He also cast doubt on the claims being put forth by Trump in private communications made public as part of the suit.
“Fox News is in big trouble if they do not expose the truth on cheating in the 2020 election,” Trump wrote in a post on Truth Social early Monday morning after a surprise 24 hour delay in the start to the trial had been announced. “They should do what’s right for America. When Rupert Murdoch says that there was no cheating in light of the massive proof that was there, it is ridiculous and very harmful to the fox case. Perhaps he should say that “he just didn’t know,” but that is hard to believe. Rupert, just tell the truth and good things will happen. The election of 2020 was rigged and stollen…you know it, & so does everyone else!”
Media observers will be watching for Trump’s reaction, as his claims about the 2020 election will be a central theme throughout the week’s proceedings.
Updated: 8:21 a.m.