A protest vehicle drives past the justice center in Wilmington, Del., Monday, April 17, 2023, where the Dominion Voting Systems’ defamation lawsuit against Fox News is set to take place. (AP Photo/Matt Rourke)
What’s been described as the media defamation trial of the century ended before it started — with a surprise settlement.
During the morning session, a jury diverse in age, race and gender was empaneled and instructed by the judge. After lunch recess, however, opening statements were delayed until the judge announced a surprise settlement and then excused the jury.
The details of the settlement have not been announced.
The trial was expected to start on Monday before Delaware Superior Court Judge Eric M. Davis bumped it for the first time on the eve of the trial.
Court officials provided no explanation for the second adjournment before Davis made the announcement just before 4 p.m. ET on Tuesday.
“I want to say I’ve never had as good of lawyering from here in the 13 years [he’s been on the bench] – the quality of the briefing, ability of attorneys to answer questions, amount of workload that you’ve done in the case. I would be proud to be your judge in the future,” Davis said.
Dominion Voting Systems alleged that Fox News knowingly smeared them in an effort to keep viewers from flocking to far-right competitors after the 2020 presidential election. More than two years have passed since the voting machine company filed a $1.6 billion defamation lawsuit against Fox News and its parent corporation, claiming the network turned the “flame” of former President Donald Trump’s election lies into a “forest fire.”
Over years of litigation, Dominion gleaned unprecedented insights into Fox’s editorial process following Trump’s defeat. In internal emails and texts, top-rated host Tucker Carlson profanely ridiculed pro-Trump conspiracy theorist Sidney Powell as a “f—— b—-” — and privately stewed that he hates the former president “passionately.” (Carlson later sat down for a friendly interview with Trump, and neither man mentioned the revelation.)
News Corp CEO Rupert Murdoch acknowledged in a deposition that some of his hosts appeared to endorse conspiracy theories about the 2020 election, even though he never believed them. Murdoch also conceded that he handed over confidential ad information from the Biden campaign to Trump’s son-in-law Jared Kushner. Murdoch will be forced to take the stand again over the course of the six-week trial. Hosts Maria Bartiromo and Carlson and Fox News CEO Suzanne Scott are also expected to testify.
The stakes are undoubtedly high, but it’s hard to pinpoint just how high an award of damages can go.
Under Delaware law, there is no limit to what Dominion could have asked a jury to award them in punitive damages. The company dropped a claim of $600 million in lost profits on the eve of trial, but they made clear that didn’t mean that their demand has gotten more modest.
“In the coming weeks, we will prove Fox spread lies causing enormous damage to Dominion,” a spokesperson said in a statement before the settlement was announced. “We look forward to trial.”
Davis issued a number of pretrial rulings that would have put Fox News at a disadvantage. In a rare summary judgment ruling, Davis found that the Fox broadcasts about Dominion voting machines at issue in the trial are false as a matter of law. Fox cannot argue that the false allegations were newsworthy, or that they were the fault of Trump surrogates like Powell or Rudy Giuliani.
First Amendment scholar Jeff Kosseff noted that the pretrial rulings left Fox News primarily with a single, yet potentially potent, defense: actual malice, the doctrine in defamation law established by New York Times v. Sullivan. It forces public figures that sue news organizations to establish that false statements were published knowingly or with reckless disregard for the truth.
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