• by Karlene Lukovitz  @KLmarketdaily, April 2, 2023

Fox News has been handed major setbacks in defending itself against the $1.6-billion Dominion Voting Systems defamation suit alleging that Fox knowingly broadcast false statements claiming voter fraud by Dominion.

The trial is now set to begin April 17, with some of Fox’s core defense arguments excluded.

Delaware Superior Court Judge Eric M. Davis on Friday ruled that the evidence already presented made it “CRYSTAL clear” (Davis’s own caps) that none of the statements relating to Dominion about the 2020 election are true,” and rejected Fox’s motion to have the case dismissed by summary judgment.

The trial will determine whether Fox knew or recklessly disregarded the false nature of the statements made by Fox News hosts and guests, which is the “actual malice” standard required for Dominion to prevail, and if so, what damages should be awarded.

The judge ruled that Fox cannot use "neutral reporting privilege" and "opinion privilege" defenses frequently used by news organizations in defamation suits. Fox has argued that airing guests’ claims of fraud by Dominion was reporting of newsworthy events, and airing hosts’ opinions supporting or spreading such claims, both fell under First Amendment protections.

But Judge Davis said that it “appears oxymoronic to call the statements ‘opinions' while also asserting the statements are newsworthy allegations and/or substantially accurate reports of official proceedings.”

He cited some late-2020 shows hosted by Fox News hosts Maria Bartiromo and Jeanine Pirro as examples, saying that they had not merely aired guests' false statements about Dominion, but provided context that would make a reasonable viewer infer that the statements were facts.

In response to the ruling, Fox released this statement: “This case is and always has been about the First Amendment protections of the media’s absolute right to cover the news. Fox will continue to fiercely advocate for the rights of free speech and a free press as we move into the next phase of these proceedings.”

If no settlement is reached, and the trial proceeds, attorneys for the two sides will have the opportunity to questions witnesses. 

For Dominion, that may include getting Fox Corp Chairman Rupert Murdoch on the stand. 

Last week, Fox attorneys tried to get Murdoch, 92, excused from having to appear to testify at the trial in Wilmington. The judge countered that it seems that Murdoch is "hardly infirm," given that he is engaged to be married for the fifth time, and plans to travel among his homes in New York, Los Angeles, Montana and London.

Fox's lawyers then argued that Murdoch need not appear in person to testify because he had already testified in extensive depositions.

Several of Murdoch's statements in those depositions, redacted versions of which were released to the public, appear to be potentially damaging to Fox's own case. 

Others on Dominion's list of witnesses include Lachlan Murdoch, co-executive chair and CEO of Fox Corp. current Fox News hosts including Tucker Carlson, Sean Hannity, and Bartiromo, as well as Lou Dobbs, whose show was cancelled in February 2021, shortly after he was named in a $2.7-bilion defamation lawsuit filed by another voting systems company, Smartmatic.

Dominion also plans to call Abby Grossberg, a producer for Carlson and Bartiromo who is suing Fox, claiming discrimination, and has also charged that Fox was trying to shift blame for the falsehoods behind Dominion's suit on her and other female employees, including Bartiromo.

Fox's witness list includes news hosts and key executives, but not the Murdochs, according to WHQR Wilmington.