Setting the Stage for the Fox News Media Defamation Trial

From CNN’s Reliable Sources with Oliver Darcy:

Hello from Wilmington!

This small Delaware city is the stage of what promises to be a media defamation trial for the ages, which is scheduled to finally begin Tuesday morning after a brief, unexplained delay by the court. And, on the eve of opening arguments, the streets are still buzzing with lawyers and reporters wondering about the prospect of a last-minute settlement.

All the hoopla is not without good reason. For the next several weeks, the high-stakes legal showdown will put on display Fox News’ culpability in sowing doubt about the legitimacy of the 2020 election. And, more broadly, the trial will showcase like never before the toxic role the right-wing talk channel has played in politics as it handsomely profits off of the mainstreaming of dangerous lies and conspiracy theories.

There will be no shortage of drama as a slew of high-wattage witnesses take the stand. The aging 92-year-old media mogul Rupert Murdoch, scion Lachlan Murdoch, embattled network chief Suzanne Scott, and all the prime time heavy hitters are likely to be called to publicly defend their actions and the deceptions that saturated Fox News’ airwaves, forming the backbone of the Big Lie and fomenting the political tension that culminated in the January 6 attack.

If the 12 selected jurors side with Dominion Voting Systems and award a sum of money near what the voting technology company is asking for, it would represent one of the largest defamation defeats ever for a U.S. media outlet. And it would mark the first time the network has faced real accountability for the poison it pumped into the information environment during Donald Trump’s presidency.

But regardless of who emerges the legal victor, the trial promises to be an excruciating affair for Fox News.

Private text messages and emails released as part of the case have already revealed top network personnel simply didn’t believe the looney conspiracy theories that were being put on the air and spread to its millions of viewers — many of whom earnestly put their faith in the channel to deliver honest reporting and analysis. Prominent hosts like Tucker Carlson and Sean Hannity knew Trump’s lies about the election were detached from reality, but leaned into the voter fraud theories anyway on their shows.

The communications also provided a window into Fox News in the wake of the 2020 election, when throngs of its viewers rebelled against it for accurately calling the election for then-candidate Joe Biden. Messages showed network personnel struggled to appease its angry election-denying viewers, with hosts like Carlson lamenting his disdain for sowing doubt about the election, but conceding it was what viewers craved.

That is the heart of Dominion’s case. The company alleges that Fox News knew the lies it promoted about its company were false, but that the channel allowed the lies to take hold on its air to protect its lucrative business. By showing to the jury that Fox News privately knew it was peddling lies, but did so anyway, Dominion hopes to prove “actual malice,” a both high and necessary legal benchmark to win a defamation case in the U.S.

Fox News, of course, has contended it did absolutely nothing wrong. When Dominion first sued, the network said it was “proud” of its election coverage — a statement that looks more awful by the day. It has argued that it both did not defame Dominion and that the $1.6 billion figure is wildly inflated.

Now it will be up to a jury to decide.

The outcome of the trial, however, is not likely to dramatically change the dishonest way in which Fox News operates. The channel is the profit engine in Murdoch’s media empire and its business model is dependent on feeding its viewership a steady stream of right-wing infotainment.

Even in recent days, as this case has advanced forward, some top Fox News personalities such as Carlson have shamelessly used their influential perches at the network to cast doubt about the legitimacy of the 2020 election.

The judge presiding over the case declined to say in a Monday hearing why proceedings were abruptly delayed: “It’s a six-week trial. Things happen… this is not unusual… This does not seem unusual to me.” (CNN)

Of course, talks of an eleventh-hour settlement were swirling at the courthouse on Monday after Murdoch’s The WSJ reported Fox had made a last-minute push to strike an out-of-court deal with Dominion. Several other outlets confirmed settlement talks had taken place at the final hour, but neither Dominion nor Fox would publicly address the matter.

“The reason a settlement has been elusive so far is not just monetary,” The NYT’s Jeremy Peters and Katie Robertson report, citing sources. “Fox … would have to issue an apology to Dominion under the terms Dominion would accept.” (NYT)

Michael Tomasky pleads with Dominion: “Don’t settle! Drag Fox News across the hot coals.” (New Republic)


Fox News took out a full page ad in The NYT on Monday claiming to be the most trusted brand in news. But Aaron Blake points out the network is twisting the underlying data. “Indeed, you could sure make an argument that Fox is actually the least trusted TV outlet, according to the same survey research organization.” (WaPo)

Eric Levenson and Marshall Cohen have a helpful list assembled showing the 20 specific Fox broadcasts and tweets that Dominion alleges were defamatory. (CNN)

Situational awareness: Most of Fox News’ allies in right-wing media have totally ignored this case as it has worked its way through the court system. Now that it has reached trial, expect the ones that do cover it to portray Fox News as the victim of the mainstream media.

But Bret Baier did — ever so briefly — address the story on Monday.

Michael Wolff is working on a book about Fox, Lachlan Cartwright, Justin Baragona, and Diana Falzone report. (Daily Beast)

Brian Steinberg’s lede for his curtain raiser: “The greatest show Fox News has never put on is about to start.” (Variety)

“It appears that disinformation is on trial,” media law professor Jonathan Peters tells Elahe Izadi, Jeremy Barr, and Sarah Ellison. (WaPo)

“The trial could set an important First Amendment precedent,” Dan Primack and Sara Fischer write. (Axios)

“It is extremely rare for a defamation case to go to trial – most are either dismissed or settled,” notes Sam Levine. (Guardian)

“Fox is in trouble,” litigator Douglas Mirell tells Josh Dickey. “Serious, serious trouble.” (The Wrap)

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