During a hearing on Tuesday, the judge in the $1.6-billion Dominion Voting Systems defamation lawsuit against Fox ruled that Fox cannot use a core defense argument: That the network’s broadcasting of false charges against Dominion was protected by the First Amendment.
Judge Eric M. Davis of Delaware Superior Court had previously ruled that statements about Dominion aired on Fox News were false.
In this latest ruling, he went further, stating that Fox’s argument that its airing of false statements about Dominion as part of false claims of voter fraud in the 2020 election by Fox News guests including Donald Trump lawyers Sydney Powell and Rudolph Giuliani was protected is irrelevant, because Fox remains responsible as the broadcaster.
“Just because someone is newsworthy doesn’t mean you can defame someone,” he said. “It’s a publication issue, not a who-said-it issue.”
The judge also rejected Fox’s argument that it was protected because, after the false statements aired, other news hosts and guests stated that evidence of widespread voter fraud was lacking. “You can’t absolve yourself of defamation by merely putting somebody on at another time to say something different,” he said.
Jury selection in the case, which now comes down to determining whether or not Fox demonstrated reckless disregard for the truth in airing the falsehoods about Dominion, is set to begin this Thursday. The trial's start is scheduled for next Monday.
Judge Davis said he will allow potential jurors to be asked about their cable news viewing habits and whether they watch or avoid Fox News, but will disallow questions about how potential jurors have voted.
He also curtailed Dominion’s allowable arguments, ruling that Dominion could not reference the January 6, 2021 insurrection at the U.S. Capitol, except under very limited circumstances.
In addition, he ruled that Dominion, which is basing its damages in part on death threats against its employees after the false election fraud accusations were broadcast — including armed people outside its Denver headquarters and voicemail messages threatening to blow up its offices — cannot mention the specific content of those messages.