By Jordan Rubin
There’s no question Fox News aired false claims about Dominion Voting Systems’ supposed role in nonexistent widespread voter fraud in the 2020 election. But that doesn’t answer the $1.6 billion question in the historic defamation trial starting Monday in Delaware state court. Key to answering that question will be whether the voting machine company can prove what’s called actual malice. How the jury answers that question could be costly for the network, not just to its finances but also to its reputation.
The Dominion v. Fox News defamation trial is expected to begin Tuesday. Follow our liveblogfor the latest updates and expert analysis atmsnbc.com/dominiontrial.
When you hear “malice,” you might think of evil intent. But “actual malice” is a legal term that has a more specific meaning. Under that standard, stemming from a 1964 Supreme Court case, Dominion must show that the false claims were aired with knowledge of their falsity or with reckless disregard for the truth. It’s a notoriously difficult standard for plaintiffs to meet — as a general matter. But it’s an understatement to call this an unusual case, including for the sheer volume of powerful evidence that Dominion has amassed — including a treasure trove of internal Fox communications — as well as the network’s apparent appetite to fight the case, nonetheless. The most surprising thing about the dispute so far may be that it’s going to trial at all.
It’s an understatement to call this an unusual case, including for the sheer volume of powerful evidence that Dominion has amassed.
In fact, that unusually strong evidence has put Dominion in an unusually strong legal position ahead of the trial. When I wrote above that there’s no question Fox News aired false claims, that’s not my opinion. That’s according to a pretrial ruling from Judge Eric Davis, who’s overseeing this civil case. In his March 31 summary judgment ruling — in which both sides argued why they should win without needing a trial — Davis wrote that it’s “CRYSTALclear that none of the statements relating to Dominion about the 2020 election are true.” (To be clear, the judge wrote “CRYSTAL” in all caps.) But he said there’s enough of a dispute over the narrower actual malice question to go to a jury, along with questions over the involvement of Fox News' parent company, Fox Corporation, in publishing false statements and whether Dominion incurred damages. So even if the voting machine company wins, that doesn’t automatically mean it will reap an eye-popping sum.
But what’s Fox’s defense? Given how legally hobbled it is by Davis’ pretrial rulings, it will be interesting to see how the defense handles a jury that’s about to be bombarded with reams of damning evidence — at least Dominion hopes so. Defense lawyers may therefore need to lean in to that generally hard-to-prove actual malice standard. And though the network has tried to wrap itself in the First Amendment flag, jurors might find it difficult to square that lofty principle with evidence that the network seemingly practiced something other than journalism. Indeed, Fox Corporation Chairman Rupert Murdoch has all but conceded, in deposition testimony ahead of trial, that money motivated the right-wing network, which was concerned with losing Donald Trump-aligned viewers to rival right-wing outlets. Opening statements on Monday could provide a roadmap of each side’s story to the jury.
How Davis handles the defense’s apparent duplicity could be another story line to follow as the trial unfolds.
Whatever happens at the trial, which could stretch through late May, it may only be the first chapter in a lengthy story of appeals. On that note, it’s worth pointing out that Supreme Court Justices Clarence Thomas — who’s been making his own news lately — and Neil Gorsuch have openly questioned that 1964 actual malice precedent, established in New York Times Company v. Sullivan. That is, two justices whose votes sometimes seem to channel those of Fox News viewers have spoken out against the precedent that could save the network at trial.
Fox's legal team heads into the trial already on poor footing with Davis, even apart from his pretrial rulings limiting the network’s defenses. Just last week, he sanctioned Fox for not disclosing evidence and said it had a “credibility problem.” How Davis handles the defense’s apparent duplicity could be another story line to follow as the trial unfolds, as the jury could hear from a series of high-profile figures like Murdoch, Fox News hosts Tucker Carlson and Sean Hannity, among others.
Unfortunately, it won’t be televised, and the court said the audio can't be recorded or broadcast, so check back in for updates on the blog and at MSNBC.com, where my colleagues and I will be live-blogging on Tuesday as this historic trial gets underway.
