The Delaware judge presiding over a $1.6 billion defamation lawsuit brought by a voting machine company against Fox News said Tuesday in a pretrial hearing that he hadn’t made up his mind to rule in either side’s favor, but ultimately sounded unconvinced by some of the arguments made by lawyers for the conservative network.
“I need to be educated,” Judge Eric Davis said at the start of the summary judgment hearing, according to the Associated Press. “I haven’t pre-decided this.”
Batting away Dominion Voting Systems’ charge that the network knowingly amplified false claims of a stolen election, Fox’s lawyers argued that its hosts had simply been reporting the newsworthy fact that then-President Donald Trump was alleging election fraud, without editorializing on his accuracy.
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“We never reported [the claims] to be true,” network lawyer Erin Murphy said. “All we ever did was provide viewers the true fact that these were allegations that were being made.”
But as she attempted to parse the difference between the standard of “actual malice” and the legal doctrine of “neutral reportage,” Davis demurred.
“To me, it doesn’t seem intellectually honest that you apply actual malice and say there’s neutral reporting privilege,” he said, according to Reuters. “How can you be neutral if you’re knowingly doing false things?”
He repeated the question—“How can that be neutral?”—when Murphy argued that host Jeanine Pirro had not defamed Dominion during a broadcast by telling viewers in November 2020 that “for the sake of our Republic, we have an obligation to get honest and truthful answers” about potentially rigged voting machines.
“That last statement makes it sound like [Pirro] has no knowledge one way or the other that Dominion had an algorithm that flipped [votes],” Davis added, according to The Washington Post. (A brief unsealed as part of the lawsuit earlier this year revealed that many Fox executives and hosts privately ridiculed and expressed doubts about the claims they were airing.)
Later, as Murphy painstakingly led Davis through Fox’s post-election coverage show by show, it became evident that former host Lou Dobbs’ on-air statements could threaten any claims of neutrality.
“There seems to be a Dobbs problem,” Davis remarked at one point.
Murphy hastened to reply that Dobbs had been an “opinion host” who, it was “abundantly clear,” believed what he was saying.
As for the denizens of Trumpworld that Fox boosted on its shows during the days and weeks following the 2020 presidential election, Murphy admitted that the network couldn’t get off “scot-free” just because the comments were being made by guests rather than hosts. “What we resist is that Dominion’s position seems to be that we are automatically liable because a guest said something,” she said, according to The New York Times.
But when Murphy added that “a reasonable viewer” would have understood that Fox was sharing rather than endorsing opinions by Trump’s team, Davis asked whether she meant “a reasonable viewer of Fox” or a reasonable viewer in general.
Davis didn’t treat Dominion’s lawyers with a much lighter touch, challenging them on some of the grounds that Murphy was putting forward. “Are you saying that Fox adopts Trump’s statements just because the president said at a press conference that the election was a hoax?” he asked at one point.
Attorney Justin Nelson replied that Dominion was claiming Fox News had hosted Trump’s people despite knowing that they were going to make false claims in front of the cameras. “They chose to let the story be out there—to let out the hoax, to release the Kraken,” lawyer Rodney Smolla said, invoking a nickname for Trump lawyer Sidney Powell. “And why? Because Fox viewers were abandoning Fox.”
Davis mentioned during the hearing that he had been assigned to another lawsuit connected to the case, but did not elaborate, according to the Post.
On Monday, Fox News and one of its former senior employees sued each other, with onetime Tucker Carlson Tonight head booker Abby Grossberg claiming the network “coached and intimidated” her before her deposition in the Dominion case. Fox, in turn, denied her allegations, and claimed in its own complaint that Grossberg had been threatening to disclose privileged information.
Lawyers for Fox and Dominion are scheduled to wrap up their arguments on Wednesday.
