The media trial of the century is here. Well almost.
The trial in Dominion Voting Systems’ lawsuit against Fox News was supposed to start today in Wilmington, Delaware. But then came late word Sunday evening that the start of the trial was being pushed back a day. In a statement, Judge Eric Davis said, “The Court has decided to continue the start of the trial, including jury selection, until Tuesday, April 18, 2023 at 9:00 a.m.”
This breaking news fueled rumors that a settlement is in the works. (More on that in a minute).
Either way, after two years, what’s another day in a trial this important?
Potentially at stake is $1.6 billion, Fox News’ reputation, the First Amendment and the future of defamation lawsuits against the press in this country.
If you read this newsletter, you know the gist of the case by now. Dominion claims that Fox News had guests on air who put forth unproven lies about the results of the 2020 election and that Fox News knew the claims were not true. In addition, Dominion claims, some Fox News hosts seemingly endorsed the lies and executives allowed it all to happen to placate viewers.
Fox News argues it merely was covering what the then president of the United States and his advisers were saying and that was newsworthy.
The standard for proving “actual malice” is what Dominion is up against. It must prove that Fox knowingly or recklessly lied on the air and that those lies damaged Dominion’s reputation.
Washington Post media reporters Elahe Izadi, Jeremy Barr and Sarah Ellison wrote, “Even though defamation lawsuits are notoriously difficult to win, legal experts say Dominion’s case against Fox is unusually strong, and not just because of the sheer amount of evidence.”
Lee Levine, a retired First Amendment lawyer who has litigated for media companies including Fox and CBS, told “CBS Sunday Morning”, “I have never seen a case involving a public figure where the evidence of actual malice that they will have to put before a jury is stronger.”
That evidence includes a trove of depositions and internal texts, emails and other communications within Fox News that appears to show the network knew that some of the guests it had on the air were spreading false conspiracy theories about the 2020 presidential election.
So what about the idea that Fox News merely had guests who went on the air and said outrageous things? Ben Smith, the co-founder of the news site Semafor and former New York Times media critic, told “CBS Sunday Morning, “A big part of the case is the question of whether someone comes on your air and says something crazy. How responsible for that are you? And it’s tricky with live television. Somebody just suddenly opens their mouth and says something. And a court isn’t necessarily going to blame the broadcaster. But if you invite them back, again and again and again, even as your senior executives are saying, ‘This person is crazy, don’t put them on the air?’”
That’s what Dominion believes it can prove.
In addition, two key pretrial rulings went against Fox. Judge Eric Davis first ruled that it cannot claim it was merely covering news. Also, Fox isn’t excused just because other hosts and reporters on other shows said there was no proof of election fraud.
Davis ruled, “You can’t absolve yourself of defamation by merely putting somebody on at another time to say something different.”
Some argue that a ruling against Fox News could have major implications for other news outlets. And that’s what Fox is arguing.
In a statement, Fox News said, “Dominion’s lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights. 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 journalist profession.”
Could it have grave consequences?
Axios media reporter Sara Fischer said last week on “CNN This Morning,” “I will say there’s a part of me as a journalist that’s a little bit worried about this case, because if Fox is to lose, essentially the precedent that is being set is that people who are powerful, that want to sue news organizations, you can, you know the bar gets lowered a little bit for to an extent if Fox loses this case. And so the thing that I’m watching is even let’s say if Dominion wins, do they win for $1.6 billion? If they don’t, to me, it suggests that that bar is not as low as it could be if they lost it all.”
Then again, one could argue that what Fox News did was so egregious that it has nothing to do with the First Amendment. And to take it a step further, given the abundance of evidence in this case, some argue that if Fox News escapes without penalty, it would make it even harder to keep news outlets from spreading and promoting misinformation.
John Culhane, professor of law at Delaware Law School at Widener University, told The New York Times’ Jeremy W. Peters, “I think it would embolden them even further.”
Floyd Abrams, a senior counsel at Cahill Gordon & Reindel, who has represented media companies, including The New York Times in the Pentagon Papers case, told The Washington Post, “The journalistic sins, which have already been exposed here, are so grievous and so indefensible that a victory for Fox will be hard to explain to the public.”
In other words, if Fox wins, what’s to stop news outlets from quoting or interviewing those they know are lying and saying defamatory things if the news outlets have no fear of getting in trouble?
Still, Fox is likely to argue that it simply can’t control everything a guest says on the air.
The trial could last up to six weeks after being two years in the making.
RonNell Andersen Jones, a University of Utah law professor, told The Associated Press’ David Bauder, “This is Christmas Eve for defamation scholars.”
Or, as The Wall Street Journal’s Erin Mulvaney, Isabella Simonetti and Joe Flint described it, “a once-in-a-generation defamation case that could have broad ramifications for the network and test the contours of modern media law.”
Could the sides settle?
It’s, of course, possible that Fox News and Dominion could settle at any point during the trial. The Wall Street Journal’s Erin Mulvaney, Isabella Simonetti and Joe Flint reported Sunday evening that “Fox has made a late push to settle the dispute out of court, people familiar with the situation said Sunday.”
The delay of the start of the trial, along with the Journal report, cranked up rumors that a settlement is in the works. But, for now, it’s just speculation. (Although, it is interesting that the Journal, a Rupert Murdoch-owned newspaper, broke that news.)
Fox News has incentive to settle to avoid testimony from some of its major on-air hosts and executives, including Murdoch, his son Lachlan, CEO Suzanne Scott and prime-time stars Tucker Carlson, Laura Ingraham and Sean Hannity, as well as host Maria Bartiromo. In addition, many legal experts predict Fox News will lose this case.
And while Dominion’s case appears strong, the standard for proving “actual malice” is a high bar and a jury trial could be risky.
Obviously, the details of a settlement — money, apologies, etc. — could be sticking points for either side.
How is this impacting Fox News?
Many of the pretrial rulings and discoveries have not been good for Fox News. Emails, texts and other documents suggest that when it came to the 2020 election, many hosts told viewers what they wanted to hear, not the actual facts. While many media observers have long viewed Fox News as a wing of the Republican Party, often echoing conservative talking points, Fox viewers seem to be OK with that. Throughout all the breaking news stories about this case, many of which have painted Fox News in a bad light, viewership remains strong.
Overall, Fox News’ ratings continue to dominate cable, especially compared to CNN and MSNBC.
Would a ruling against Fox News change that? Would Fox News viewers be bothered if a jury rules the network purposefully lied to them? We shall see, but my guess is Fox News will survive this, particularly in the long term.
How is Fox News covering the trial?
On the eve of the Dominion-Fox News trial, Fox News’ weekly show about the media — “MediaBuzz,” hosted by Howard Kurtz — started Sunday’s show by teasing the intel leaker story. It then launched into media coverage of abortion, particularly what Kurtz called the lack of coverage of New York Democratic Congresswoman Alexandria Ocasio-Cortez calling on the Biden administration to ignore the recent abortion pill ruling.
That was followed by coverage of the two members of the Tennessee legislature who were expelled and then reinstated, and how they appeared on “show after show after show” on CNN and MSNBC with, Kurtz said, “barely a hint that they had done anything wrong.”
Finally, 25 minutes into the show, Kurtz addressed the Fox News-Dominion case. Kurtz said, “And let’s face it, much of the mainstream media is rather openly hoping for Fox to lose.”
Kurtz then said, “I can assure you that I will provide fair and down-the-middle coverage …”
Kurtz said it has been a “very rough week for Fox,” and talked about how the judge in the case admonished the Fox lawyers for withholding certain key information, including Rupert Murdoch’s role within Fox News itself. (Murdoch is the founder and oversees Fox News’ parent company, but also holds a title at Fox News.) The judge also ruled against Fox News in several other key rulings.
Kurtz said he will be in Wilmington to cover the start of the trial. The “MediaBuzz” segment on the Fox News trial lasted less than four minutes with no guest analysis.
For a show specifically about the media, it was an absurdly bare-bones short amount of time with no real meat in the coverage. Kurtz said he will provide fair and down-the-middle coverage, but on the eve of the trial, he provided hardly any at all.
Other notes from the Fox-Dominion case
- CNN’s Ramishah Maruf with “What to know ahead of the Fox News and Dominion trial.”
- The New York Times and Washington Post will have daily newsletters covering the trial.
- Former CNN media reporter Brian Stelter is covering the trial for Vanity Fair.
- The trial will not be televised. Vanity Fair’s Charlotte Klein writes how that could be a gift to Fox News.
Media tidbits
- The Washington Post’s Joseph Menn with “Russians boasted that just 1% of fake social profiles are caught, leak shows.”
- The Daily Beast’s Corbin Bolies with “SNL’s First Nonbinary Cast Member Goes to Bat for Trans Kids.”
- Mediaite’s Ken Meyer with “‘Calm Down’: Chris Christie Tries to Stifle Donna Brazile’s Abortion Rant During Tense ABC Panel.”
- From last week, Semafor’s Max Tani with “Jen Psaki says she considers herself a journalist.”
Hot type
Supreme Court Justice Clarence Thomas. (AP Photo/J. Scott Applewhite, File)
- Another investigative piece about Supreme Court Justice Clarence Thomas. The Washington Post’s Shawn Boburg and Emma Brown with “Clarence Thomas has for years claimed income from a defunct real estate firm.”
- How did America’s 20-year war in Afghanistan end with a Taliban victory? You can stream parts one and two of PBS’s “Frontline: America and the Taliban” now. Part three will be available on April 25.
- The Boston Marathon is today. To get you ready, here’s a fun piece from The New York Times’ Scott Cacciola: “How Fast Is Eliud Kipchoge? You’ll Fall Down When You Find Out.”
More resources for journalists
- Subscribe to Poynter’s Friday newsletter, Open Tabs with Poynter managing editor Ren LaForme, and get behind-the-scenes stories only available to subscribers.
- Transform your newsroom’s reporting on crime and criminal justice with our 24-week online seminar. Apply by April 21.
- Editorial Integrity and Leadership Initiative — (Sept. – April, 2024) (Hybrid) — Apply by May 15.
- Save the date! Poynter’s Bowtie Ball is Nov. 18 at the JW Marriott in Tampa, Florida. Get tickets.
Have feedback or a tip? Email Poynter senior media writer Tom Jones at tjones@poynter.org.
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