Dem
51
GOP
49
On Friday, Fox News got some actual news, but it didn't bother to mention it on its website at all. Odd. The news was that Delaware judge Eric Davis made some rulings in the defamation lawsuit brought by Dominion Voting Systems against Fox. And they were doozies. Davis ruled that from all the depositions, e-mails, and text messages that Dominion provided him, the company had proven beyond any doubt that all the claims Fox made on air about Dominion's machine being rigged were false. He ordered a jury trial, but the jury will be instructed that the judge has already ruled that Fox lied on air many times. In his ruling, Davis literally wrote that the evidence is: "CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true." The capitalization was in the written ruling. That point is no longer in dispute. If the Fox lawyers try to claim that their hosts did not lie or were merely expressing their opinions, the judge will cut them off and order them to drop that discussion. The Fox lawyers will not be allowed to talk about the First Amendment or freedom of speech or anything like that.
The jury will be asked to decide two questions. First, did Fox lie with actual malice? That is, did the hosts know they were lying and do it anyway because management told them to or because it was better for business or because their viewers wanted that? There are large numbers of e-mails and text messages that strongly suggest, and perhaps prove, that the hosts knew they were lying, didn't believe a word of what they were saying, and did it anyway for business reasons, in complete disregard of the truth. The jury will get to see all the messages and will have to decide if there was actual malice. Dominion has a pretty solid case, but it will be up to the jury in the end.
The second question depends on the answer to the first one. If Fox is found guilty of actual malice, then the jury has to determine what the damages are. They can award Dominion actual damages (e.g., compensation for lost sales due to the defamation) and punitive damages (as a punishment for the defamation).
Jury selection will begin on April 13 and the trial will begin on April 17 if all goes well. The voir dire should be lots of fun. Lawyers for both sides will no doubt be curious about the viewing habits of the potential jurors. Will Dominion's lawyers be able to excuse all Fox viewers? Will Fox' lawyers be able to excuse all MSNBC viewers? Each side has only so many peremptory challenges. If they get used up, the lawyers will have to explain to the judge why the potential juror should be rejected and the judge gets to decide.
Many of the Fox hosts will be called as witnesses, very likely Tucker Carlson, Laura Ingraham, and others. Dominion's lawyers will then read text messages and e-mails they sent clearly indicating that they knew Trump was lying and the machines were not rigged. Then the lawyers will ask them—under oath—if they indeed sent those messages. They will almost certainly have to reply: "Yes," as the risk of perjury is enormous. Then the next question will be: "Why did you lie when you knew the machines were not rigged?" The answer is very likely to be something essentially like: "For business reasons." That's the malice part.
Legal experts say that Fox is in a deep hole because the depositions, texts, and e-mails clearly show that the hosts wilfully and knowingly lied repeatedly. Recordings of them on air doing so might be played for the jury to demonstrate this. Fox has plenty of money (for the time being) and can afford to hire the best lawyers around, but there is little they can do about the facts. (V)