The trial that will determine whether Fox News will answer for its role in spreading baseless 2020 election-theft conspiracies is set to begin on Tuesday—if, well, it happens at all. Of course a case with stakes this high would have some Sunday-night pretrial intrigue. If Dominion, the voting-machine company suing Fox, wins, the price would be a stiff one: The company has asked for $1.6 billion in damages, a sum so large that even the Murdochs will wince if they have to pay it.
A Dominion victory is by no means guaranteed, though. Fox News will mount a vigorous defense on First Amendment grounds, and will argue that the statements and assertions presented on its airwaves did not meet the “actual malice” standard established in the landmark libel case New York Times v. Sullivan—a precedent that many thin-skinned conservatives have otherwise been very eager to overturn. If Fox News escapes sanction in the Dominion case, it will frame the outcome as a victory for free speech and the free press. In practice, defeating Dominion will embolden the right-wing network as the 2024 election approaches, because it will have pulled off the broadcast equivalent of shooting a guy point-blank on 5th Avenue.
Now the stage is set for a juicy, revealing, and intensely dramatic trial. The next several weeks could shine a light on the inner workings of the country’s most influential cable news network, while offering the rare pleasure of watching the organization’s most prominent professional bullshitters being made to testify under oath on the witness stand. Former House Speaker Paul Ryan might even make an appearance, like a breath of stale air from a slightly less toxic moment in America’s recent political history. There’s nothing like springtime in the Superior Court of Delaware!
That said, there is a slight chance that this trial might not happen at all! Opening arguments were initially scheduled to take place on Monday. On Sunday night, though, Judge Eric Davis announced that he would continue the start of the trial for 24 hours—a turn of events that is personally dismaying to me, a man who is now worried that he may have traveled to Delaware for no real reason. Is a settlement on the way? That’s the most obvious explanation for this sudden delay, though I suppose it’s also possible that the court’s pipes are on the fritz or something. I guess we’ll see! (Update, April 17, 9:38 p.m.: It appears, for now, that the trial is set to begin on Tuesday.)
Anyway, you’ve probably got some questions, such as:
What is Dominion Voting Systems, and why did it sue Fox News?
Dominion Voting Systems manufactures voting machines, which were used by some states to collect and tabulate votes in the 2020 presidential election. In November 2020, not long after Joe Biden had been officially declared the winner of that election, a bunch of disreputable right-wing sore losers—that’s the technical term—began to claim that the Dominion machines had somehow been tampered with, and that votes that had been duly cast for Donald Trump via Dominion machines had been secretly switched over to Biden’s column.
The fact that this thesis was very stupid did not stop it from gaining credence among many Trump voters. These people weren’t just angry that their candidate had lost the election; they were angry that Fox News wasn’t reporting that Trump had actually won the election. In retaliation, many of these Trump fans began to unofficially boycott Fox News, instead tuning in to other right-wing news networks, such as Newsmax, which were much more willing to indulge their conspiratorial fantasies.
It was during this short-lived period of viewer flight (and amid Fox executive panic at those viewers’ flight) that some Fox News personalities began to report uncritically on the claims that Trump partisans were making about Dominion.
Which ones? Which Fox News personalities? I bet it was Lou Dobbs, right?
You win the bet!
What do I win?
Literally nothing. When you bet on Lou Dobbs, even when you win, you lose.
Anyway, as I said, not long after Election Day 2020, Fox News and Fox Business personalities such as Dobbs, Maria Bartiromo, and Jeanine Pirro began giving airtime to obviously stupid theories about Dominion products being used as part of a scheme to switch votes from Trump to Biden.
On Nov. 8, 2020, for example, Bartiromo hosted attorney and prominent nut Sidney Powell on Sunday Morning Futures, where Powell said that “they” used “an algorithm to calculate the votes they would need to flip and they used computers to flip those votes.”
“Sidney, we talked about the Dominion software,” said Bartiromo. “I know that there were voting irregularities. Tell me about that.”
“That’s putting it mildly,” said Powell. “The computer glitches could not and should not have happened at all. That is where the fraud took place, where they were flipping votes in the computer system or adding votes that did not exist.”
On Nov. 12, 2020, for another example, Dobbs brought Rudy Giuliani onto Lou Dobbs Tonight to “talk about, just for a moment, an update on Dominion.” Giuliani, then acting as Trump’s personal lawyer and the public face of his election challenges, claimed that Dominion was “a company that is owned by Venezuelans who were close to—were close to Chavez, are now close to Maduro, have a history, they were founded as a company to fix elections.”
“It’s stunning,” said Dobbs, who also said that the scheme described by Giuliani “looks to me like it is the end of a four-and-a-half-year-long effort to overthrow the president of the United States. It looks like it’s exactly that. … This election has got more firsts than any I can think of, and Rudy, we’re glad you’re on the case and pursuing what is the truth.”
The next day, on Nov. 13, 2020, Dobbs welcomed Powell onto his show, and the lawyer announced that “People need to come forward now and get on the right side of this issue and report the fraud they know existed in Dominion Voting Systems, because that’s what it was created to do. It was its sole original purpose. It has been used all over the world to defy the will of people who wanted freedom.”
Rather than push back on this claim, Dobbs again argued that “this is the culmination of what has been an over a four-year effort to overthrow this president; to first deny his candidacy, the election, but then to overthrow his presidency. This looks like the effort to carry out an endgame in the effort against him. Do you concur?”
“Oh, absolutely,” said Powell.
OK, I get the picture.
You don’t want another example?
Is it basically like the preceding three examples?
Everything on Fox News is basically like everything else on Fox News.
Let’s move on.
Great! Alleging that these claims and other, similar ones were libelous, Dominion sued Fox in March 2021, asking for $1.6 billion in damages. Now, over two years later, the company’s day in court is finally here.
How has Fox News been covering the case?
Case? What case? The only case that matters to Fox News right now is the case of Bud Light in your garage refrigerator, which they would like you to dump into the garbage in retaliation for the beer brand’s decision to sponsor a post on the feed of a transgender Instagram influencer.
How long will the trial last, and who is expected to testify?
The trial may last as long as six weeks, and, within that timespan, many rich and famous Fox News figures may well have to suffer the indignity of having to visit Delaware. The witness list includes Bartiromo, Dobbs, and Pirro, as well as other Fox News hosts such as Bret Baier, Tucker Carlson, Sean Hannity, Laura Ingraham, and Dana Perino. Rupert, James, and Lachlan Murdoch—the family that owns and controls Fox—may also make appearances. As a reminder, if and when these and other witnesses take the stand, they will be testifying under oath, which will make it harder for them to glibly dissemble in the way that some of them are accustomed to doing on television.
Did anyone really expect that this case would go to trial?
I sure didn’t! I thought that Fox and Dominion were going to settle out of court, if only because most cases settle out of court, especially those involving deep-pocketed defendants that are capable of paying out rich settlements in order to make lawsuits go away.
So why didn’t that happen before now?
Good question! You sort of get the sense that Dominion was really pissed off about having its reputation gratuitously smeared by some of television’s least prudent commentators. As such, it’s possible that Dominion didn’t want to settle, or at least that it didn’t want to settle for whatever sum Fox may have offered. (I assume that a settlement was previously offered.) Dominion might have thought the facts of the case are clear enough that a jury wouldn’t not be able to see things its way. It’s worth noting that several First Amendment lawyers share this opinion. “I do overall believe that this is one of the strongest plaintiff’s cases that I’ve ever seen,” attorney Lee Levine told the Los Angeles Times in March 2023. Another lawyer, Andrew Geronimo, told the LA Times that “From a defense lawyer’s perspective, it gives me the cold sweats reading [the evidence in the case].”
Fox News isn’t just going to take Andrew Geronimo’s word as gospel, though. Instead, the network has hired a whole bunch of lawyers who are gambling that the network can win the case on First Amendment grounds. These lawyers have irritated Judge Eric Davis by, among other things, objecting to every single exhibit that Dominion proposed to use in court (“this isn’t a game,” Davis said); claiming that Rupert Murdoch, who just last month first announced and then canceled an engagement to a woman 26 years his junior, was too feeble to travel to court; and apparently withholding evidence in the case while pretending that Murdoch was not, in fact, an official officer of Fox News. “I need to feel comfortable that when you represent something to me, it’s the truth. I’m not very happy right now. I don’t know why this is such a difficult thing,” Davis said in response to that last infraction, before sanctioning Fox News for withholding evidence.
Eric Davis was pretty good for the Reds back in the day! So he’s a judge now?
Different Eric Davis, I think. This Eric Davis might not have ever been on a baseball card, but I’m told that he is a very punctual person.
Well, anyway, could Fox News win this case?
It’s possible! The First Amendment is capacious, and Fox News will likely spend a lot of time arguing that the allegedly libelous statements were actually protected speech. One of the great things about America is that the press gets a very wide berth when it comes to allegations of libel. In many other countries, journalists are not quite so lucky, and have to be very careful about what they say about powerful people. In the United States, though, journalists have a lot more room within which to work. The 1964 case New York Times v. Sullivan established that public figures claiming that they have been libeled by news organizations must prove that the offending statement or statements were issued with actual malice, meaning, essentially, that the news organization presented as fact something that it knew or strongly suspected to be false. Many present-day conservatives really dislike the Times v. Sullivan precedent, and would prefer a weaker standard so that it would be easier to sue liberal journalists who are mean to them. For now, though, they’re happy to let the precedent stand, in hopes that it will shield Fox News from punishment for its role in airing the false claims about Dominion.
The claims in question are false, right?
False enough that, in a decision issued this March granting summary judgment to Dominion on the question of the claims’ falsity, Judge Davis wrote that the “evidence developed in this civil proceeding demonstrates that [it] is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true.” I am not a lawyer, but it’s my understanding that when a judge capitalizes, italicizes, and bold-faces a word, he really, really means it.
Well, then, this case seems pretty clear-cut. As the judge himself noted, the Dominion theories were plainly, clearly false. And no matter what the judge thinks, literally any logical person back in November 2020 could have deduced that these theories were dumb and bad. And yet Fox News advanced them anyway. Isn’t that libel?
Well, it’s not quite so simple. The question here isn’t whether or not Fox News did bad work in its reporting on the aftermath of the 2020 presidential election. And the question isn’t whether or not Fox News reported that something that was false was actually true. While the answer to both of these questions is yes, that alone doesn’t and shouldn’t make Fox News liable in a court of law. Even good news outlets do bad work and sometimes report false things as true things. Journalism isn’t settled history, and the nature of the news business is that sometimes you report things in good faith that turn out to have been dead wrong. Sometimes you quote people in good faith who were operating in bad faith, and were lying to you, or saying something that they themselves knew to be untrue. The fact that Fox News passed along Sidney Powell’s stupid theories about Dominion might be enough to condemn the network in the court of public opinion—but that alone is insufficient to render the network liable in a court of laws.
Right, right, the “actual malice” thing.
Correct. The real question has to be this: Did Fox News know or strongly suspect that the Dominion theories were false, and then go ahead and report them as legitimate anyway?
Oh, come on, everyone knew they were false.
Well, that’s basically what Dominion is going to argue. During the pre-trial discovery process, Dominion’s lawyers unearthed and publicized an intensely embarrassing trove of communications from and among Fox News hosts, reporters, producers, and executives, in which they not only expressed dismay at the network’s post-election viewership losses, but shared their real opinions about Trump, his team, and their post-election claims of fraud. While I won’t go into detail about these communications, because this article is already long enough, the basic gist is that lots of people at Fox News were saying in private that Trump, his team, and their theories were wrong and embarrassing, while saying much the opposite in public. The communications also indicate that Fox executives attempted to stop certain Fox hosts and reporters from aggressively fact-checking and pushing back on said embarrassing theories, in part because its audience was not receptive to that sort of fact-checking.
Dominion will use this information to argue that Fox knew the theories were crap but reported them anyway, because the network was afraid of losing even more viewers in the post-election period and wanted to give its base the red meat it craved. Fox News, for its part, will argue that it was just presenting the Dominion conspiracy as a theory, or as someone else’s opinion; that it is inherently newsworthy to report on things said by the president of the United States and his close associates; and that the network was not making an unequivocal editorial statement that, according to Fox, the Dominion theories were true.
Are you sure it’s not the same Eric Davis who was a 30-30 man for the Reds back in ’87?
I’ll be in the courthouse this week—if there’s a trial!—and I’ll keep my eyes open. If it’s the same guy, you’ll be the first to know.
Will you also keep your eyes peeled for Judge José Rijo?
I think we’re done here.
