FOX - Dominion squares off against Fox News in high-stakes $1.6B case

2023-04-18 06:01:00 ET

Fox News ( NASDAQ: FOX ) ( NASDAQ: FOXA ) and voting-machine company Dominion Voting Systems square off Tuesday in a landmark trial that will decide whether Fox owes Dominion $1.6B for defamation -- but might also end up reshaping the law's approach to the media.

The trial is starting a day later than expected, after Sunday night news that it wouldn't start on Monday as planned -- news that launched wide speculation that Fox was looking to settle out of court, after a number of losses on pretrial matters.

On Monday, Delaware Superior Court Judge Eric Davis said the delay was his decision and gave no information about exactly why. And no activity on the docket for the rest of Monday hinted that a settlement was close.

So at 9 a.m. Tuesday, jury selection that started last week resumes, and will be followed by opening arguments in what's expected to be a six-week trial.

Dominion is seeking $1.6B in damages, having accused Fox News of hurting Dominion's reputation by spreading false claims that the voting-machine company worked to rig the 2020 election in favor of President Biden. Its officials have said they won't settle without a broad apology and admission from Fox that it aired false information about the company -- though observers have noted Dominion is owned in part by a private-equity concern (Staple Street Capital, along with management) that might care more about financial damages rather than striking a blow against Fox's reputation.

And key pretrial rulings have gone Dominion's way. The lawsuit itself noted death threats directed at its employees spurred by Fox News' reporting, and the judge ruled in summary judgment for Dominion on the question of whether Fox's claims were false: "The evidence developed in this civil proceeding demonstrates that it's CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true."

That means the key question for the jury will be determining whether Fox acted with "actual malice" or with "reckless disregard" for the truth, the measures emerging from the 1964 case New York Times v. Sullivan. And Dominion is planning a long list of evidence citing internal conversations at Fox News indicating knowledge and discussion of the falsehood of the claims.

For its part, Fox is framing its approach as a defense of the First Amendment, suggesting a Dominion win would have grave consequences for journalism.

And speaking up on the Network's behalf will probably be a parade of the network's stars as potential witnesses, likely including Sean Hannity, Tucker Carlson, Maria Bartiromo and perhaps Fox chief Rupert Murdoch.

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