The landmark $1.6bn defamation trial between Dominion Voting Systems and Fox kicked off on Tuesday morning, but was unexpectedly delayed after 12 jurors were sworn in.
Both sides were expected to present their opening arguments to the jury around 1.30pm ET but when the court reconvened, Judge Eric Davis appeared on the bench, then left the courtroom with Dominion and Fox lawyers. A packed courtroom began to wonder about the delay as Justin Nelson, Dominion’s lead lawyer, and Dan Webb, one of Fox’s lead lawyers, repeatedly conferred.
The trial had been already delayed a day amid settlement talks, but appeared headed towards trial on Tuesday morning.
An hour before the court was set to conclude for the day, Davis had not returned to the bench. Both sides had said they planned more than an hour of opening statements.
Amid the wait, Davis issued an order appointing a special master to investigate whether Fox had failed to comply with its obligation to turn over all discovery in the case, the New York Times and Washington Post reported. The special master’s report is due on 15 May.
Earlier, Davis instructed the jurors and 12 alternates to avoid discussing the case or reading anything about it on the internet or social media.
“Human nature is that you’re going to want to talk about the case among yourselves or with third parties,” he said. “It’s hard but you’re just going to have to fight human nature.”
The diverse group of 12 people had been tasked with deciding whether Fox should be held accountable for its role in spreading lies about the 2020 election.
Dominion is suing Fox News and its parent company Fox Corporation for knowingly spreading false claims about its equipment after the 2020 election. Fox repeatedly broadcast outlandishly false allegations that the company had paid government bribes, switched votes and was founded in Venezuela to rig elections for Hugo Chávez.
“In the coming weeks, we will prove Fox spread lies causing enormous damage to Dominion,” said a Dominion spokesperson in a statement the morning of the trial. “We look forward to trial.”
The trial has already provoked a media frenzy. On Tuesday, dozens of reporters and cameras were outside the courthouse, and the courtroom and an overflow area were packed with reporters. A Fox spokesperson was reportedly kicked out of the courtroom for taking a photograph, which is against the court rules.
Rupert and Lachlan Murdoch, the top Fox executives, are expected to be called as witnesses. Fox News anchors Tucker Carlson, Sean Hannity, Maria Bartiromo and Jeanine Pirro are expected to testify at the trial.
At the heart of Dominion’s case is a trove of internal messages from Fox hosts and executives in which they openly say they knew the outlandish claims about Dominion were false. “Sidney Powell is lying, by the way. I caught her. It’s insane,” Carlson wrote in one such message, even as Fox continued to air Powell’s claims about Dominion.
Defamation cases rarely go to trial because there is such a high bar a plaintiff has to clear to win. But experts observing the lawsuit said Dominion had put together an unusually strong case. The company may have strong enough evidence to show that Fox acted with “actual malice”, that Fox knew the claims were false, or that Fox acted with reckless disregard for the truth.
“It’s a rarity that we’ll see something of this caliber play out in front of a jury,” said RonNell Andersen Jones, a first amendment scholar at the University of Utah.
The case could also have broader implications for media in the US. Fox has said that a win for Dominion would be a blow for the first amendment. Some experts have expressed similar concerns. Many news organizations may not be able to afford the lengthy legal battle that Fox can, said Jane Kirtley, a professor at the University of Minnesota and former executive director for the Reporters Committee for Freedom of the Press.
“The risk of big-money judgments deters investigative journalism. Unfortunately, I’d predict [that] if Fox loses, we’ll see a significant uptick in libel cases against all news organizations,” she said. “Most news organizations will have a digital paper trail, which, though perhaps not as damning as Fox’s, could indicate (at least in a jury’s mind) bias, irreverence, carelessness and so forth.”
But other experts see it differently. If Dominion were to prevail in the case, it could show that news organizations can still be held accountable despite the high bar plaintiffs must clear. If Fox were to prevail in the case, some say, it would be difficult to imagine what a plaintiff would need to show to prove a defamation claim.
Judge Davis issued a series of pre-trial rulings limiting what Fox can argue in its defense. Fox may spend a significant portion of the trial focused on the idea that the specific individuals responsible for airing the challenged claims did not know they were false. The network could also focus its defense on challenging the $1.6bn in damages Dominion says it is owed.
But Fox is facing increasing hurdles. The network apologized on Friday for failing to disclose Rupert Murdoch’s position as an officer at Fox News until last week, telling Davis on Friday there was a “misunderstanding”.
Abby Grossberg, a former Fox News employee, is also suing the network, claiming she was coerced into giving misleading testimony. She also has made public new recordings in which Rudy Giuliani and Trump campaign officials say they cannot substantiate fraud allegations.
“As counsel explained to the court, Fox produced the supplemental information from Ms Grossberg when we first learned it,” a Fox spokesperson said in a statement. “Rupert Murdoch has been listed as executive chairman of Fox News in our SEC filings for several years, and this filing was referenced by Dominion’s own attorney during his deposition.”
The company is facing a lawsuit from a shareholder who says the Murdochs and other officials breached their fiduciary duty by allowing false claims to be aired.
A Fox spokesperson noted that viewership data “has not been impacted by the Dominion case” and has been steady or increased since the start of the trial process in mid-February.
