Dominion's case against Fox News goes to trial: What to know about the $1.6 billion defamation lawsuit
Update: Fox News and Dominion Voting Systems reached a settlement just as the trial was getting underway. Read the latest here. Our earlier story is below.
Washington — Dominion Voting Systems and Fox News are squaring off in Delaware state court when the voting machine company's $1.6 billion defamation lawsuit heads to trial, and it works to convince a jury that the cable network knowingly defamed it in the wake of the 2020 presidential election.
Dominion was at the center of conspiracy theories pushed by allies of former President Donald Trump following his loss in the 2020 presidential election, and has argued Fox News defamed it by broadcasting baseless allegations about the company's voting machines and software that it knew were false.
Fox News and its parent company, Fox Corporation, contend that the allegations they were covering were newsworthy, and statements made on the cable network were protected by the First Amendment.
The trial is kicking off over two years after Dominion filed its lawsuit against Fox News, which has already resulted in the release of text messages and emails exchanged by some of the network's top stars. The messages showed how they viewed the allegations of fraud, their colleagues in the news division, and even the former president himself.
Both sides requested the judge overseeing the case, Delaware Superior Court Judge Eric Davis, rule in their favor based on the evidence already developed. Late last month, Davis ruled that the evidence demonstrated it is "CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true," and the statements from Fox News that are challenged by Dominion constitute defamation "per se."
But he said a jury will decide whether Fox acted with actual malice in broadcasting the unfounded allegations about Dominion and will determine whether the company is entitled to damages, and if awarded, how much.
His ruling cleared the way for a trial, which is expected to take six weeks.
Here is what you need to know about the legal showdown.
Why is Dominion suing Fox News?
The untrue allegations about the integrity of the 2020 election and Dominion's role were broadcast on Fox News by several of its on-air personalities — Maria Bartiromo, Tucker Carlson, Lou Dobbs, Jeanine Pirro and Sean Hannity — and pushed by their guests — conservative lawyer Sidney Powell, former New York City Mayor Rudy Giuliani, and MyPillow founder and CEO Mike Lindell.
So Dominion sued Fox News Network in March 2021 and its parent company Fox Corporation, run by chairman Rupert Murdoch and CEO and executive chairman Lachlan Murdoch, in November 2021 in the Delaware Superior Court.
The voting systems company alleges that Fox knowingly spread false claims about Dominion in 20 broadcasts and blamed it for Trump's electoral loss in an effort to boost ratings, particularly after the network saw viewers flee after it was first to call Arizona for Mr. Biden, effectively sealing the presidency for him.
Dominion argued Fox orchestrated a defamatory campaign against it and is seeking $1.6 billion in damages.
What is Dominion Voting Systems?
Founded in 2003 in Toronto, Dominion Voting Systems began providing voting machine technology to the U.S. in 2009, when it secured its first contract to provide services to more than 50 counties in New York.
The company now contracts with state and local governments to provide voting systems and services in more than half of the states — in the 2020 election, Dominion provided voting machine technology in more than 28 states, from California to Michigan to Georgia.
Dominion provides both hardware, including voting machines and tabulators, and software to manage elections.
While the company was hardly well known, it gained notoriety during the 2020 election: The former president and his backers made unfounded allegations that the election was rigged against Trump, and Dominion was central to their false theories.
Among the inaccurate claims pushed by Trump's supporters, and amplified by the former president, was that Dominion is owned by a company founded in Venezuela to rig elections for Hugo Chavez, the dictator who died in 2013. In other instances, Trump's allies also falsely alleged that Dominion's algorithms and software flipped votes from Trump to Joe Biden or deleted votes, and made the false claim that Dominion paid kickbacks to government officials in exchange for contracts to provide voting machines.
As a result of these claims, Dominion said its business and employees suffered — workers were stalked, harassed and received death threats, it lost profits and its reputation was damaged.
What does Dominion need to do to prove defamation?
In order to successfully prove Fox should be held responsible, Dominion must convince a jury that the network acted with "actual malice," the legal standard set in the Supreme Court's landmark 1964 decision in New York Times Co. v. Sullivan.
To show actual malice, a public figure must prove the publisher knew the offending statements were false or acted with reckless disregard for the truth.
In its lawsuit filed against Fox News in March 2021, Dominion wrote that Fox refused to retract false and defamatory statements despite being informed multiple times that its claims were inaccurate, "demonstrating its actual malice in publishing them."
Dominion, for example, sent more than 3,600 emails to Fox reporters, producers, anchors and content managers beginning Nov. 12, 2020, that debunked Fox's statements and explained how they were false.
The company said it also had a conversation with Fox News president and executive editor Jay Wallace about the unfounded claims, and sent the network letters demanding retractions of the false allegations it was spreading.
Despite this correspondence, Fox "refused to retract any of its false and defamatory statements about Dominion," the voting company argued.
"The truth matters. Lies have consequences," Dominion claimed in its lawsuit. "Fox sold a false story of election fraud in order to serve its own commercial purposes, severely injuring Dominion in the process. If this case does not rise to the level of defamation by a broadcaster, then nothing does."
What does Fox say?
The crux of Fox News' argument is that it was engaging in activity protected by the First Amendment: ensuring that "the public had access to newsmakers and newsworthy information that would help foster 'uninhibited, robust, and wide-open' debate on rapidly developing events of unparalleled importance."
"Dominion filed this lawsuit to make Fox News pay for participating in that vital debate at a price that would stifle similar debates going forward," Fox News lawyers said in a filing with the court. "Making an unsupportable but publicity-generating and speech-chilling claim for $1.6 billion in damages, Dominion accused Fox News of defamation. But allegations and facts are two different things, and the costly (and chilling) discovery that Fox News has been forced to endure for more than a year confirms what it has said from the beginning: Dominion's lawsuit is an assault on the First Amendment and the free press."
The network further argues that the allegations from Dominion are factually unfounded and legally unsound.
In examining each alleged defamatory statement to determine whether they are outside of legal bounds, Fox News said its coverage and commentary fall within the lines of the law and the First Amendment. Additionally, the network said the unfounded claims pushed by the former president and his allies were "unquestionably newsworthy because of who leveled them, where, when, and how they were leveled, and what they concerned."
The company's lawyers contend that Dominion fell short of showing the statements by the network's on-air personalities were made with actual malice because they asked questions about whether Trump and his lawyers would be able to produce evidence to support their allegations of voter fraud in court.
Once it became clear neither Trump nor his lawyers could prove their claims in time to impact the outcome of the 2020 election, Fox said it stopped inviting them on its air.
In a separate filing, lawyers for Fox Corporation argued it had no role in the creation and publication of the statements challenged by Dominion. Fox's parent company pointed to deposition testimony from several of its hosts, including Pirro, Carlson and Bartiromo, who said they did not speak with anyone at Fox Corporation, such as Rupert Murdoch or Lachlan Murdoch, about Dominion or the accusations against it.
What's going on with all the text messages and emails?
As part of the discovery process, a slew of internal communications between Fox hosts and the company's top officers were made public, shedding light on what was taking place behind the scenes in the wake of the 2020 election.
"Fox knew. From the top down, Fox knew 'the dominion stuff' was 'total bs.' Yet despite knowing the truth — or at minimum, recklessly disregarding that truth — Fox spread and endorsed these 'outlandish voter fraud claims' about Dominion even as it internally recognized the lies as 'crazy,' 'absurd,' and 'shockingly reckless,'" Dominion wrote in a February filing. "The colorful choices of words used by so many Fox employees all try to capture the same basic truth about these inherently improbable allegations: These claims were false, and obviously so."
Fox has accused Dominion of relying on "cherry-picked" quotes that lack context.
In separate messages from Carlson and host Laura Ingraham, the two take aim at Powell, a conservative lawyer who pushed the claims about Dominion, with Carlson telling a producer she is "lying," and Ingraham calling her a "bit nuts."
"Really crazy stuff," Rupert Murdoch wrote of claims pushed by Giuliani during a Nov. 19, 2020, press conference.
But some of the network's top talent also acknowledged and expressed concerns about the impact of the network's decision to call Arizona on election night for Mr. Biden and fumed about their colleagues working for the news division. Their text messages conveyed the sense that the news side's decision to call Arizona — Fox was the first news organization to do so — had alienated viewers.
"We are all officially working for an organization that hates us," Ingraham wrote in a group message to Carlson and Hannity.
"Do the executives understand how much credibility and trust we've lost with our audience? We're playing with fire, for real," Carlson said in a separate message.
"With Trump behind it, an alternative like newsmax could be devastating to us," Carlson said in another.
In a group text thread among the three primetime hosts on Nov. 12, 2020, they expressed dismay about a "fact checking" tweet by reporter Jacqui Heinrich, later deleted, that noted election infrastructure officials found no votes had been changed.
"Please get her fired. Seriously What the f**k? actually shocked … It needs to stop immediately , like tonight. It's measurably hurting the company. The stock price is down. Not a joke," Carlson wrote to Hannity.
Hannity said he "already sent to Suzanne with a really?" He also groused about former "Fox News Sunday" host Chris Wallace's moderation of one of the presidential debates and Fox News anchor Neil Cavuto, who indicated he had doubts about election fraud claims Trump allies were making. "I'm 3 strikes . Wallace s**t debate [,]" Hannity wrote. "Election night a disaster [.] Now this BS? Nope. Not gonna fly. Did I mention Cavuto?"
The messages obtained and made public also revealed the original source of false claims about Dominion: A Minnesota woman who sent an email to Powell, Dobbs and a conservative activist with the subject line "Election Fraud Info" and claimed the wind talks to her and she had been "internally decapitated." The woman also claimed the late Justice Antonin Scalia was "purposefully killed" during a "weeklong human hunting expedition."
"No reasonable person would have thought that," Chris Stirewalt, Fox's politics editor, wrote about the allegations against Dominion.
"It's remarkable how weak ratings make good journalists do bad things," Bill Sammon, senior vice president and managing editor of Fox's Washington, D.C, bureau, commented.
Sammon and Stirewalt were both let go after the election.
The internal communications made public as part of the lawsuit also reveal how some at the network viewed Trump.
Carlson wrote in a message to staff in early January 2021 that "We are very, very close to being able to ignore Trump most nights," and in another, wrote, "I hate him passionately."
The trial
Jury selection in the trial started on April 13, with opening statements set for Tuesday, April 18, after the judge announced a one-day delay. There will be 12 jurors and 12 alternates seated.
The days leading up to the trial's start have brought some last-minute wrangling. The judge sanctioned Fox's lawyers after Dominion accused them of withholding evidence. A Fox lawyer apologized to the court in a letter, writing that the network's legal team is "committed to clear and full communication with the Court moving forward."
Fox also told the court that it turned over the evidence, audio recordings from a former Fox News producer, when it learned they existed. Since Jan. 10, Fox News and Fox Corporation has handed over roughly 14,300 documents to the electronic voting company, most of which is personal emails from Bartiromo, the network said.
"To underscore, Fox was not withholding any information from Dominion regarding the audio recordings, some of which have been in Dominion's possession for the better part of a year," Fox's lawyers said.
A dispute involving damages also arose after Fox's lawyers wrote in a filing that it was informed by Dominion that it is "walking away" from lost profit damages and will seek only "lost enterprise value" damages, "knocking more than half a billion dollars off the damages in its complaint."
Cited in latest court papers was an email sent on April 14 from one of Dominion's lawyers to Fox's legal team, which read, "This email confirms that Dominion will not be presenting its claim for lost profits damages to the jury, given that it is duplicative of the lost enterprise value damages."
But a spokesperson for the company said in response to Fox's filing that "the damages claim remains. As Fox well knows, our damages exceed $1.6 [billion]."
Both Dominion and Fox News asked the judge overseeing the case, Davis, to rule in their favor before a trial. But Davis last week denied the motions from Fox News and Fox Corporation, allowing the action to go to a jury trial.
He granted Dominion's request for summary judgment on several elements of their defamation claim, writing that 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."
But Davis denied summary judgment on the issue of actual malice because of disputed material facts.
"The court does not weigh the evidence to determine who may have been responsible for publication and if such people acted with actual malice — these are genuine issues of material fact and therefore must be determined by a jury," he wrote in an 80-page opinion.
Davis rejected an argument from Fox News that all the statements at issue in the case are opinions and therefore not actionable defamatory statements, writing that it is "reasonably conceivable" that Fox viewers wouldn't view the statements as merely the opinions of the hosts, but either "actual assertions of fact, or implications that the hosts knew something that the viewers did not."
"The statements were capable of being proven true, and in fact the evidence that would prove the statements was discussed many times (but never presented)," Davis wrote. "Moreover, the context supports the position that the statements were not pure opinion where they were made by newscasters holding themselves out to be sources of accurate information."
Who could take the stand?
The list of potential witnesses who may be called to testify include many of Fox's stars, such as Carlson, Bartiromo, Hannity, Pirro and Bret Baier, as well as former host Dobbs and Dana Perino.
The network also told Davis in a letter that it would make Suzanne Scott, Fox News CEO, available.
Dominion indicated it wants the Murdochs to take the stand, as well as Viet Dinh, Fox Corporation's chief legal officer, and former House Speaker Paul Ryan, a member of Fox Corporation's board.
During a hearing this month, Davis said he would compel Murdoch and other top Fox officials to testify if Dominion issued a subpoena for their testimony.