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(NEW YORK) — Jury selection is underway Thursday in Dominion Voting Systems’ $1.6 billion defamation lawsuit against Fox News, officially kicking off the beginning of the high-stakes case that was first filed over two years ago.
Dominion has accused the conservative network of knowingly pushing false conspiracy theories that the voting machine company had somehow rigged the 2020 presidential election in Joe Biden’s favor, in what Dominion claims was an effort to combat concerns over declining ratings and viewer retention.
Fox has defended its coverage, dismissing the suit as a “political crusade in search of a financial windfall.”
“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 journalism profession,” Fox News said in a statement.
Jury selection is expected to last two days, with opening statements scheduled for Monday morning in Wilmington, Delaware.
To win its case, Dominion will have to meet the heavy burden of proving “actual malice” — showing that Fox News did not just broadcast false statements, but that they did so knowing they were false or with a “reckless disregard” for the truth.
“The standard for actual malice is pretty high,” the judge overseeing the case, Eric Davis, has noted.
But as part of its case, Dominion has obtained a trove of internal private communications from some of Fox’s biggest stars and executives, which appeared to show them privately expressing doubt over the election fraud claims — despite what was stated on the airwaves. Dominion has said they hope the communications will, in part, help them reach that high bar.
“This case differs from nearly any defamation case before it,” Dominion wrote in one of its filings, saying the “overwhelming direct evidence establishes Fox’s knowledge of falsity.”
The closely-watched trial, which is expected to last five to six weeks, is expected to see live testimony in the courtroom from some of Fox’s biggest stars and executives, including Fox Chairman Rupert Murdoch, and hosts Tucker Carlson and Sean Hannity.
“I never believed it,” Murdoch said regarding one of the false anti-Dominion conspiracy theories, according to a transcript that was released from his closed-door deposition in the case earlier this year.
Fox has argued that it was simply reporting on newsworthy claims made by then-President Donald Trump.
“The hosts testified that they did not know that the president’s claims were false at the time of the relevant shows,” the network has said.
The trial comes after pretrial hearings resulted in a series of unexpected setbacks for Fox News. During a pretrial hearing on Wednesday, Judge Davis issued a sanction against Fox after an apparent delay in handing over some evidence to Dominion, telling Fox that it will have to pay for any last-minute depositions Dominion wishes to conduct.
This evidence at issue included a recording of Trump’s attorney Rudy Giuliani privately expressing doubts over the claims regarding Dominion’s voting software — a piece of evidence that Dominion’s attorney, Davida Brook, said was “obviously relevant” but that they had only received last week.
“What about this software, this Dominion software?” Fox News host Maria Bartiromo could be heard asking Giuliani on the recording, which was played in court.
“That’s a little harder, it’s being analyzed right now,” Giuliani said.
An attorney for Fox pushed back, claiming they had handed over all relevant documents and that they were not aware the recordings existed until recently.
More significantly, Judge Davis said he would “most likely” appoint a special master to conduct an investigation into whether representations by Fox made to the court as part of the case were “untrue or negligent” — including a certification it had made in December that it had essentially completed its discovery process in accordance with the case.
The special master was already involved in the case to oversee the discovery process, but the new investigation will determine “what sanctions could be implemented” against Fox, the judge said — a significant development on the eve of the trial.
“I’m very uncomfortable right now,” Judge Davis said of the situation. “I’m going to let you know, I’m very uncomfortable.”
Also Wednesday, the judge criticized Fox attorneys for being “evasive” after Dominion said the network had concealed the official role of Rupert Murdoch as an officer at Fox News. Although Murdoch is the chairman of the network’s parent company, Fox Corporation, Dominion said Fox News’ lack of disclosure regarding Murdoch’s position with Fox News had hindered, among other things, their ability to obtain evidence regarding him.
“This is very serious,” Judge Davis said.
He ordered Fox’s attorney to preserve their communications regarding the issue.
“I need people to tell me the truth,” Davis said on Tuesday. “And by the way, omission is a lie.”
In a statement, Fox pushed back on the idea that Murdoch’s status at Fox News had been concealed, saying, “Rupert Murdoch has been listed as executive chairman of FOX News in our SEC filings since 2019 and this filing was referenced by Dominion’s own attorney during his deposition.”
Last month, Judge Davis also issued a series of rulings in the summary judgment phase — including a ruling that the statements pushed by Fox News were, in fact, false.
“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,” Davis wrote.
The judge also blocked one of Fox’s defenses — that it was merely reporting on claims that were undeniably “newsworthy” from Trump and his legal team. The judge wrote that defense “fails to shield” them from liability, and warned Fox attorneys during pretrial hearings not to make any of those arguments to the jury, or he would rebuke them.
In a statement responding to that ruling, Fox said, “This case is and always has been about the First Amendment protections of the media’s absolute right to cover the news. FOX will continue to fiercely advocate for the rights of free speech and a free press as we move into the next phase of these proceedings.”
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