Dominion Voting Systems' $1.6 billion defamation lawsuit against Fox News is entering a new phase. Lawyers at the Superior Court in Wilmington, Delaware, are choosing members of the jury ahead of the trial's opening statements Monday.
"The jury will be asked to decide whether Fox betrayed its responsibility as a journalist organization," said NYU law professor Burt Neuborne.
Judge Eric Davis has already ruled that Fox's reporting on air about the company was not factual. Now, Dominion's lawyers must convince a jury that the coverage was defamation.
Neuborne says the Supreme Court — in a previous ruling — established a standard of "actual malice," created in the 1964 case New York Times v. Sullivan.
"What they still have to do is persuade the jury that Fox, or any of the other defendants in the case, acted with such reckless disregard for the truth that they either knew they were lying, or were such bad journalists that they shouldn't even be accorded the kinds of First Amendment protection that we give to ordinary journalists," Neuborne said.
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After former President Donald Trump lost the 2020 election, the most prominent of Fox News hosts, including Sean Hannity, Tucker Carlson and Maria Bartiromo, as well as frequent guests, like Rudy Giuliani and Sidney Powell, echoed Trump's conspiracy theories relating to Dominion, including claims that votes were changed or deleted in favor of Joe Biden, and that Dominion rigged elections for a Venezuelan dictator who died in 2013 — all of which are false.
The Canadian-based company provides software to manage elections, as well as voting machines and tabulators. In the 2020 election, it provided services to more than half of states in the U.S., including states in which Republicans alleged unfounded fraud claims.
Fox refused to retract its statements despite Dominion calling for them to do so.
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Fox contends the allegations against Dominion were at the time newsworthy and are protected by the first amendment. But the release of text messages from some of the most prominent on-air talent cast doubt on just how earnest those concerns really were.
"That First Amendment protection is defeated if the journalist is consciously lying, or if the journalist is functioning so badly, with such lack of regard for the truth, that the journalist can be characterized as being reckless about the truth," Neuborne said.
Judge Davis sanctioned Fox News Wednesday afternoon, after recordings were handed over by a former Fox producer of discussions she had with Giuliani and Powell. Dominion's lawyers were not given them during the discovery phase of the trial. Judge Davis says the company will be able to conduct another deposition. The producer — Abby Grossberg — contends Fox pressured her to give false testimony in the case.
Fox's biggest stars and executives could take the stand during the trial, and Dominion is pushing for others, including Murdoch and even board member and former House Speaker Paul Ryan. At stake is the $1.6 billion Dominion is seeking in compensation.