A person walks by Fox News signage posted on the News Corporation building in New York City, April 12, 2023
Andrew Kelly | Reuters
WILMINGTON, Del. — Opening arguments are beginning Tuesday in the Dominion Voting Systems’ defamation lawsuit accusing Fox News of spreading the damaging falsehood that the company rigged the 2020 election.
The civil trial in Delaware Superior Court arrives more than two years after Dominion, which sells voting machines and election software, first accused Fox of knowingly airing lies about the company in order to boost its ratings.
The network “intentionally and falsely” blamed Dominion for former President Donald Trump‘s loss to President Joe Biden by broadcasting unsubstantiated claims about the company, including that it meddled with vote tallies, Dominion alleged.
Fox has maintained that the statements made about Dominion on its air are protected by the First Amendment, which shields the freedoms of speech and press. The network also argued that Dominion’s suit does not establish that the claims were aired with “actual malice,” a requirement to meet the legal standard for defamation.
Jury selection in the case wrapped up late Tuesday morning, but not without its fireworks. Just as the 12-member jury and 12 alternates were set and about to receive instructions, an alternate juror interrupted.
“Sir, I can’t do this. I’ve been up all night. I can’t do this,” the alternate juror said, shaking his head.
Davis also reminded the courtroom earlier on Tuesday that photos or live Tweets or blogs were not permitted from inside the main room. He noted that earlier on Tuesday someone was removed from the courtroom for taking photos. The person, a Fox News representative, was forced to delete the photos and permanently exit the courtroom.
The Fox representative misunderstood the courtroom rules and apologized, adding that the pictures were deleted immediately, the company told CNBC.
The judge said the person was removed and “turned on everybody else,” and said others in the courtroom were live-tweeting. Davis said he wouldn’t tolerate this from anyone. “If it’s flagrant, you may be held in contempt,” he said.
The trial is expected to last up to six weeks, and Judge Eric Davis appeared determined to stick to that timeframe.
“I’m going to keep it strict. I’m not going to give you an extra day,” Davis told attorneys for both camps.
Davis later told jurors not to be concerned with the delayed start to the trial, which began a day later than previously planned: “I will control the time. Don’t concern yourself with that, it is my job,” he said.
Lawyers for Dominion Voting Systems and their legal team arrive at the Leonard Williams Justice Center where the Dominion Voting Systems defamation trial against FOX News is taking place on April 18, 2023 in Wilmington, Delaware.
Andrew Caballero-Reynolds | AFP | Getty Images
Opening statements are slated to kick off Tuesday afternoon, meaning witnesses will likely take the stand beginning on Wednesday.
The first witness that could take the stand is Tony Fratto, CNBC’s Eamon Javers reported from the front of the Delaware courthouse on Tuesday. Fratto, who is currently the head of communications for Goldman Sachs, was an external crisis communications expert for Dominion at the time of the 2020 election. Fratto was often in contact with producers, on-air talent and reporters at Fox News.
The judge ruled earlier this month that the 92-year-old Murdoch and his son, Fox Corp. CEO Lachlan Murdoch, can be forced to testify in court. Other witnesses include Carlson, Fox News CEO Suzanne Scott, Sean Hannity and other top TV personalities at Fox.
Fox in the spotlight
The trial’s unusual circumstances — most defamation cases settle out of court, and few promise in-person testimony from a parade of well-known media figures — along with a 10-figure claim for damages have generated cacophonous media buzz. But it’s far from clear what impact, if any, the case will have on Fox’s reputation or its bottom line.
Dominion has also filed defamation lawsuits against Trump’s former attorney Rudy Giuliani, his ex-campaign lawyer Sidney Powell, right-wing news networks and other figures. Smartmatic, another elections technology firm, has filed similar defamation lawsuits demanding billions of dollars in damages.
Sidney Powell, an attorney later disavowed by the Trump campaign, participates in a news conference with U.S. President Donald Trump’s personal lawyer Rudy Giuliani at the Republican National Committee headquarters on Capitol Hill in Washington, November 19, 2020.
Jonathan Ernst | Reuters
But the case against Fox has seized the spotlight in recent months — especially following the release of troves of private messages and testimony from top Fox News talent and executives, including Fox Corp. Chairman Rupert Murdoch and opinion host Tucker Carlson.
The communications have cast a shade of scandal over the legal battle, revealing how some Fox personnel and other high-profile figures reacted behind the scenes to the events following the 2020 election. News outlets were quick to contrast some Fox personalities’ private remarks about the election fraud claims with what was being said on air at the same time.
Dominion and Fox clashed Monday on how much money is actually at stake, with Fox stating Dominion had slashed its damages claim from an original amount of $1.6 billion and Dominion holding firm that “the damages claim remains.”
One piece of the lawsuit has already been decided: Davis last month ruled that the statements flagged by Dominion were, indeed, false. “The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true,” Davis wrote.
His ruling clarified that the trial jury will determine who is responsible for publishing the false claims, and if those people acted with actual malice. That legal standard means proving that the claims were published with the knowledge they were false, or with reckless disregard for the truth.
The lead-up to the trial has already been marked by major twists, only heightening public interest.
Dominion lawyers Michael Farnan (L) and Rodney Smolla enter the Leonard Williams Justice Center where the Dominion Voting Systems defamation trial against FOX News is taking place on April 18, 2023 in Wilmington, Delaware.
Andrew Caballero-Reynolds | AFP | Getty Images
And in a pretrial hearing last week, Davis sanctioned Fox and its parent company for withholding evidence from Dominion during the discovery process, NBC News reported.
Recordings made by former Fox producer Abby Grossberg in 2020, which allegedly show Giuliani and Fox host Maria Bartiromo talking about voting software, were not handed over to Dominion, according to NBC. Grossberg sued the network last month, alleging she was coerced into giving misleading testimony in the Dominion case.
A Fox spokeswoman said after the hearing that it had “produced the supplemental information from Ms. Grossberg when we first learned it.”
This is developing news. Please check back for updates.
— Kevin Breuninger reported from Wilmington, Delaware. Lillian Rizzo reported from Englewood Cliffs, New Jersey.