Fox News defamation trial abruptly delayed as question lingers: Did Fox act with 'actual malice'?

The Fox News defamation trial has been delayed
The Fox News defamation trial has been delayed Copyright Yuki Iwamura/AP
By Katy Dartford with AP
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The Fox News defamation trial has been abruptly delayed. The channel is being sued for knowingly or recklessly broadcasting lies about voting equipment after Trump lost election.

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The blockbuster trial of the €1.5 billion defamation lawsuit between Dominion Voting Systems and Fox News has been delayed until Tuesday (18 April), amid reports of settlement talks.

Eric Davis, the Delaware superior court judge overseeing the case, announced the change of schedule on Sunday evening. He did not confirm why the trial was being delayed.

Jury selection and opening arguments were set to begin on Monday morning. Expected to testify in person are top Fox executives Rupert and Lachlan Murdoch, along with top Fox hosts Sean Hannity, Tucker Carlson, Maria Bartiromo and Jeanine Pirro.

Neither Dominion nor Fox Corp., which is being sued along with Fox News, have commented on the trial delay.

The Wall Street Journal, Reuters and the Washington Post all cited a "source familiar with the situation," when reporting that the delay was due to settlement talks.

Evan Agostini/2023 Invision
Fox News commentator Sean HannityEvan Agostini/2023 Invision

Did Fox act with 'actual malice'?

The case centres on whether Fox defamed Dominion Voting Systems by spreading false claims that the company rigged the 2020 presidential election to prevent former President Donald Trump’s re-election. 

Dominion’s case is unusually strong. Over the last several months, records produced as part of the lawsuit show that many of the network’s hosts and executives didn’t believe the allegations made by Trump allies such as Sidney Powell and Rudolph Giuliani, but aired them anyway. Fox says many of those disbelievers were not in a position to decide when to air those allegations.

If the case goes to trial, the jury will determine whether a powerful figure like Murdoch, who earlier testified that he didn't believe the election-fraud charges, had the influence to keep the accusations off the air.

Dominion argues that Fox News was afraid of alienating its audience with the truth, particularly after many viewers were angered by the network's decision to declare Democrat Joe Biden the winner in Arizona on election night in November 2020.

In a summary judgment, Davis said it was “crystal clear” that fraud allegations against Dominion were false and the company's reputation was damaged. That means trial time won't have to be spent disproving them at a time when millions of Republicans continue to doubt the 2020 results.

But Davis said it would be up to a jury to decide whether Fox acted with a “reckless disregard” for the truth and with “actual malice” and, if so, what that is worth financially.

In most libel cases, this is the most difficult hurdle for claimants to get past.

Mary Altaffer/ AP
Rupert MurdochMary Altaffer/ AP

Testing Press Freedom

Fox witnesses are likely to testify that they thought the allegations against Dominion were newsworthy and that it was defending the freedom of speech and the press, laid out in the First Amendment.

But Davis made it clear this is not a defence against defamation. New York law protects news outlets from defamation for expressions of opinion; Davis pointed out that on 20 different times, allegations against Dominion were discussed on Fox as fully or partly considered statements of fact.

Weakening the 'malice standard'

Fox has also argued that a win for Dominion would lead to more lawsuits against media outlets and weaken press protections in the US.

Law experts say that if the suit advances to the US Supreme Court, it could be used by the court as a pretext to weaken the actual 'malice standard', which would be disastrous for journalists.

In New York Times Co. v. Sullivan (1964), the Supreme Court held that public officials can't recover damages for libel without proving that a statement was made with 'actual malice,' defined as “with the knowledge that it was false or with reckless disregard of whether it was false or not.”

Andres Leighton/AP
Dominion Voting Systems ballot-counting machinesAndres Leighton/AP

America's wounded democracy

The trial could also illuminate the flow of misinformation that helped spark the January 6, 2021 insurrection at the US Capitol and continues to fuel Trump's hopes to regain power in 2024.

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But the idea that the election was stolen still undermines faith in American democracy among Trump's supporters. 

According to many polls, the former president remains the front-runner for the Republican nomination in 2024.

The trial has had no apparent effect on Fox News' viewership; it remains the top-rated cable network and there is little indication that the case has changed Fox's editorial direction. 

Evan Vucci/Copyright 2021 The AP. All rights reserved
President Donald Trump speaks during a rally protesting the electoral college certification of Joe Biden as President in Washington, Jan. 6, 2021. .Evan Vucci/Copyright 2021 The AP. All rights reserved

Fox has embraced Trump once again in recent weeks following the former president's indictment by a Manhattan grand jury. Host Tucker Carlson even presented an alternate history of the Capitol riot, based on tapes given to him by House Speaker Kevin McCarthy. 

The possibility that the trial will restore the truth about 2020, therefore, seems far-fetched.

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