Fox News is set to go trial Tuesday in a $1.6 billion defamation suit brought by Dominion Voting Systems, which alleges the news network made false claims about fraud related to its voting machines in the 2020 presidential election.

The trial was originally set to begin on Monday, but the end of jury selection and opening statements were abruptly delayed 24 hours until Tuesday, Delaware Superior Court Judge Eric Davis told UPI, without providing a specific reason.

Davis previously rejected a Fox News motion to dismiss the case last week.

He has also ruled this month that if called, Fox Corp. executives Rupert and Lachlan Murdoch must testify in the case and barred Dominion from bringing up the Jan. 6, 2021, riots at the U.S. Capitol, saying it could taint the jury’s view of the case.

Davis sanctioned Fox News for withholding evidence in the case, including recordings made by Fox News producer Abby Grossberg during 2020 that weren’t handed over to Dominion in the suit’s discovery phase.

Dominion’s case

Dominion brought the lawsuit against Fox two years ago, alleging that the network “endorsed, repeated and published a series of verifiably false yet devastating lies,” which it described as “defamatory and far-fetched fictions.”

Some of the Fox News claims cited by Dominion as false include that Dominion committed 2020 election fraud, that Dominion software manipulated 2020 presidential election vote counts, that Dominion is owned by a Venezuelan company funded to rig elections for deceased Venezuelan leader Hugo Chavez and that Dominion paid kickbacks to government officials who used its machines in the 2020 election.

Georgia Secretary of State Brad Raffensperger, a Republican, ordered a statewide random sample audit of Dominion Voting Systems machines in November 2020 and found “no sign of foul play.”

Raffensperger said then that no evidence was found that the machines were tampered with.

In a March 31 ruling, Davis agreed that the claims made against Dominion are untrue.

“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,” he wrote.

Fox denies defaming Dominion and maintains the information it transmitted is protected by the First Amendment.

“There will be a lot of noise and confusion generated by Dominion and their opportunistic private equity owners, but the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution and protected by New York Times vs. Sullivan,” Fox News said in a statement to UPI in February.

Dominion’s suit also alleges that its business has suffered enormous and irreparable harm as a result of a Fox News’ “orchestrated defamatory campaign,” including repeated threats against its employees, as well as its founder and CEO.

‘Actual malice’

This case could impact how journalists are allowed to cover stories and how far media companies can go in spreading wild conspiracy theories while using the First Amendment as cover.

It hinges on the actual malice standard established by the 1964 Supreme Court case New York Times vs. Sullivan, which defined “actual malice” as making an untrue statement “with knowledge that it was false or with reckless disregard of whether it was false or not.”

“The central question in the trial will be whether Dominion can offer sufficient evidence to convince the jury that Fox News disseminated defamatory statements it either knew to be false or the truth of which it recklessly disregarded,” University of Wisconsin-Madison Professor Emeritus Robert Dreschel told UPI.

Dreschel, an expert on constitutional law and communications, noted that actual malice is “a very difficult standard to meet,” which was the Supreme Court’s intention in the 1964 ruling.

“It is a standard through which the court has made the First Amendment a factor in many libel cases and provided strong protection for speech on matters of public interest,” he said. “And it is important to remember that the jury will only be determining the facts — whether or not there was actual malice. The jury is not permitted to question the standard itself.”

Don Herzog, a professor of law at the University of Michigan, told UPI actual malice is technically an independent question that does not amount to just being mean, nasty or actuated by the desire to do harm.

“What it really means is you subjectively doubted or disbelieved the truth of what you were saying,” he said. “I don’t doubt that a jury will find it atmospherically moving. But there is at least logically room for Fox to go on saying, ‘We believed it then and we believe it now.’ Even though, of course, the judge will simply instruct the jury, as a matter of law those claims are false, that is now settled.”

Possible outcomes

Dreschel told UPI that information made public about the lawsuit so far indicates Dominion has “an unusually strong case.”

According to a 192-page court filing by Dominion, Fox News owner Rupert Murdoch, Fox News talk hosts Tucker Carlson, Sean Hannity and Laura Ingraham privately shared their disbelief in Trump’s false claims about 2020 election fraud even as Fox News continued to trumpet those falsehoods to their viewers.

The messages also showed that Hannity referred to Trump attorney Sidney Powell, who pushed the election fraud theories, as “a complete nut.”

“Courts have long held that using unreliable sources like Ms. Powell and purposefully avoiding readily available sources are evidence of a reckless disregard for the truth that expose the publisher of such information to substantial legal risk for defamation,” Dominion warned in a letter.

Dreschel added, however, if Fox News can convince the jury that it did not act with actual malice, its claims would be protected by the First Amendment and it would likely be handed a win at trial.

If Fox loses, Dreschel said the case could make its way to the U.S. Supreme Court, where the actual malice standard itself could be challenged.

“I would hope the court would turn it away,” Dreschel said. “The parties themselves are so prominent and the facts so entangled with political issues of such importance that at the very least, I would hope the court would see this case as one in which the actual malice requirement makes good sense.”

Herzog said an outcome in which the Supreme Court weighs actual malice stemming from the case is unlikely.

“The people on the court who have growled about the standard worry that it’s ‘too’ speech-protective. If Fox loses, it is hard to see the court giving a ‘more’ speech-protective standard yet, or finding as a matter of law that the jury verdict was impermissible,” he said.

Herzog said the greatest impact to come from the case is likely the $1.6 billion in damages sought by Dominion from Fox News.

“The law wants to grab Fox’s attention and say, don’t you dare do this again, and not leave them with a smallish judgment that they can think of as a mere cost of doing business,” he said. “And the court has also decided that First Amendment law requires a showing of actual malice to get punitive damages in a defamation case.”

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