The trial in Dominion v. Fox News, which has already resulted in bombshell revelations about the right-wing media giant and the 2020 election, is scheduled to begin Tuesday. Unless a settlement is reached, a jury will determine whether Fox is financially liable for broadcasting and promoting false claims about Dominion Voting Systems’ voting machines rigging the 2020 election — and the case could have a big impact on the consequences of broadcasting false claims and conspiracy theories in the future.
During the pretrial discovery period, text messages between Fox News anchors and executives, along with hundreds of pages of filings and depositions, were released to the public, giving people an unprecedented look inside Fox News and the chaos behind the coverage of the 2020 election and the Jan. 6, 2021, insurrection. It also revealed that several of the network’s hosts and executives did not believe the election fraud claims they were promoting on air.
It’s extremely rare for a defamation case to go to trial; most civil lawsuits are dismissed or settled. An unexpected delay on Monday led to speculation that settlement talks were back on, and negotiations can continue up until a verdict is reached.
At stake is not only monetary and reputational damage, but the case could also test the longtime standard that actual malice, or knowing that something is a lie and spreading it anyway, is necessary to prove defamation of public figures — some observers believe the case could end up at the Supreme Court. Either way, the case will doubtless influence political coverage at Fox and other networks as the 2024 campaign heats up.
Opening statements are scheduled for Tuesday in Delaware, where both Fox and Dominion are incorporated, and the trial could last up to six weeks. Here’s everything you need to know as it begins.
First of all, what is Dominion Voting Systems?
Dominion Voting Systems is a private corporation that makes voting machines and equipment used in 28 states nationwide.
Why and when did Dominion sue Fox News?
After the 2020 election, then-president Donald Trump began spreading false claims about election fraud and lies that Dominion’s voting machines were rigged and had flipped votes meant for Trump to Joe Biden. In one instance, on Nov. 12, 2020, the former president tweeted that “DOMINION DELETED 2.7 MILLION TRUMP VOTES NATIONWIDE.”
During this time, Fox News hosts and guests repeatedly promoted and broadcasted false claims, such as that the company was tied to the late Venezuelan president Hugo Chávez and that the machines rigged the 2020 election against Trump, even after the claims had been debunked. Then in 2021, Dominion Voting Systems filed a lawsuit against Fox News and its parent company, Fox Corp, alleging that the network pushed conspiracy theories and had defamed Dominion in the weeks and months following the election, damaging its reputation and business.
Dominion alleges that Fox hosts and executives knew that the false claims made about the voting machines were untrue or that they acted with reckless disregard for the truth.
In the complaint against Fox, Dominion argues that Fox “sold a false story of election fraud in order to serve its own commercial purposes, severely injuring Dominion in the process.”
“The truth matters,” the complaint continues. “Lies have consequences.”
What damages is Dominion seeking?
Dominion is seeking $1.6 billion in compensatory damages, and it is also seeking lawyer fees, security costs, and punitive damages.
What’s happened in the case so far?
During the discovery process, a cache of internal messages showing Fox executives, producers, and pundits privately disagreeing with Trump’s claims about how the 2020 election was fraudulent were made public. They showed that many within Fox News, including hosts Sean Hannity, Laura Ingraham, and Tucker Carlson, seemed not to believe the false election claims, even though they pushed the allegations on their shows.
One of the text conversations released from January 2021 was between Carlson and an unidentified colleague. “I hate him passionately,” Carlson said, speaking of Trump. “We are very, very close to being able to ignore Trump most nights. I truly can’t wait,” Carlson said in another text message.
He also lamented the failures of the Trump presidency. "That's the last four years. We're all pretending we've got a lot to show for it because admitting what a disaster it's been is too tough to digest," Carlson wrote. "But come on. There really isn't an upside to Trump."
In a text from November 2020 from Carlson to Ingraham, Carlson criticized conservative lawyer Sidney Powell, who pushed the election fraud allegations. “Sidney Powell is lying, by the way. I caught her. It’s insane,” Carlson wrote. “It’s unbelievably offensive to me. Our viewers are good people and they believe it.”
Text messages also show Fox News hosts disparaging Trump's attorneys. Carlson said Trump, along with lawyers Lin Wood and Powell, had "so discredited their own [voter fraud] case, and the rest of us to some extent, that it's infuriating."
In one pretrial hearing, Dominion attorneys played a deposition that showed Fox Corporation chair Rupert Murdoch, 92, admitting that he didn’t believe the election fraud accusations and said that several Fox News hosts, including Jeanine Pirro and Hannity, were endorsing the lie that the election was stolen from Trump without evidence.
Asked by a Dominion attorney whether or not he could have directed Fox News CEO Suzanne Scott to stop hosting guests who promote the false election fraud claims on Fox, Murdoch said that he could have, but that he didn’t.
As he considered motions for summary judgment, Delaware Superior Court Judge Eric Davis said it was “CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true.”
He also rejected a claim from Fox News that the statements about Dominion were opinions and, thus, not defamatory.
“The statements were capable of being proven true, and in fact, the evidence that would prove the statements was discussed many times (but never presented)," the judge wrote. "Moreover, the context supports the position that the statements were not pure opinion where they were made by newscasters holding themselves out to be sources of accurate information."
The judge has said that it will be up to the jury whether Fox acted with “actual malice.”
What does Dominion have to prove?
Because the judge has already ruled that the statements are false, Dominion doesn’t need to prove that the statements are untrue, but just that there was actual malice. In order to do this, Dominion must show that Fox knew the statements were false or prove that it acted with a “reckless disregard” for whether the claims were true, a test that stems from the 1964 Supreme Court case New York Times v. Sullivan.
The actual malice rule takes into consideration that reporters might sometimes make unintentional mistakes when working against a deadline, Gabe Rottman, the director of the Technology and Press Freedom Project with the Reporters Committee for Freedom of the Press, told BuzzFeed News earlier this year.
"If it were possible for an honest reporter who makes an honest mistake to face a lawsuit every time they do, then that will chill reporting. It will mean fewer stories and less investigative journalism," Rottman said. "That’s why the actual malice rule is there."
But Times v. Sullivan does not give media outlets the endless right to spread false information, especially if it can be proved that they know it is untrue.
In the complaint against Fox, Dominion alleges that even after Fox was “confronted with the direct facts disproving its lies about Dominion,” the company “refused to retract its false and defamatory statements, thereby further demonstrating its actual malice in publishing them.”
Dominion also states that it sent hundreds of emails to Fox News reporters and producers rebutting Fox’s false claims, adding that it even spoke with Fox News president and executive editor Jay Wallace and detailed “Fox’s defamatory falsehoods about Dominion and explained how and why they are false.” The voting machine company also says it sent Fox retraction demand letters in November and December 2020.
“Nevertheless, Fox refused to retract any of its false and defamatory statements about Dominion,” the complaint reads, “and instead repeatedly doubled down on its false and defamatory statements by continuing to publish and republish them.”
What is Fox saying?
In a brief filed by Fox, the company held that it aired the claims of rigged voting machines because they came from a sitting president and people close to him and thus were newsworthy.
“An attempt by a sitting President to challenge election results and reverse the outcome of his re-election bid is as newsworthy as it gets,” the filing states. “Media outlets around the country and the world thus provided extensive coverage of and commentary on the President’s allegations and lawsuits.”
Fox maintained that “Fox News fulfilled its commitment to inform fully and comment fairly,” adding that “Some hosts viewed the President’s claims skeptically; others viewed them hopefully; all recognized them as profoundly newsworthy.”
The network alleges that it covered Dominion’s denials and gave the company opportunities to tell its side.
“In short, Fox News did exactly what the First Amendment protects: It ensured that the public had access to newsmakers and newsworthy information that would help foster “uninhibited, robust, and wide-open” debate on rapidly developing events of unparalleled importance,” the court filing by Fox’s lawyers states.
Fox also claims that “Dominion’s lawsuit is an assault on the First Amendment and the free press.”
Who is expected to take the stand?
According to the Associated Press, Carlson, Hannity, and Murdoch are expected to testify. Many also believe that Pirro, Scott, and former host Lou Dobbs will also take the stand.
Will you be able to watch it on TV?
No cameras will be allowed, per the Delaware court policy, and the judge recently denied a request by media companies to broadcast audio excerpts.
What are the possible outcomes?
If Fox loses, the company will likely be stuck with a steep payout, its stock price could take a hit, and its reputation would be damaged. Fox News has argued that if it loses, the case will hurt press freedoms and the First Amendment.
“A free-flowing, robust American discourse depends on First Amendment protections for the press’ news gathering and reporting,” a Fox Network spokesperson said in a statement to the New York Times.
If Dominion loses, it would not only uphold the extremely high bar for media defamation, but it might prompt Fox News and other networks to broadcast even more falsities in the future.
“If Fox loses, one thing that it says is that there are limits to propaganda, to lying on television…to misinforming your viewers,” Jay Rosen, professor of journalism at New York University, told CNN. “If Fox wins, it kinda says the opposite, there are no limits.”
Whatever happens in the Dominion trial, it’s far from the end of Fox News’ problems. In 2021, Smartmatic, a global technology company from London, also filed a $2.7 billion defamation suit against Fox News and Fox Business host Maria Bartiromo, Trump’s former lawyer Rudy Giuliani, and Dobbs.
The lawsuit came after the network broadcasted a series of false claims concerning Smartmatic voting machines and the 2020 election. Around a month ago, the New York State Supreme Court in Manhattan gave the go-ahead for the Smartmatic case to proceed.