Dominion's defamation trial against Fox News begins

By Catherine Thorbecke, Mike Hayes, Maureen Chowdhury, Marshall Cohen, Oliver Darcy and Jon Passantino, CNN

• Opening statements in Dominion Voting Systems’ $1.6 billion  defamation trial against Fox News  are  expected to begin Tuesday, but there has been an unexplained slowdown in the proceedings and the 12-member jury is not inside the Delaware courtroom.
• The election technology company is suing over the right-wing cable channel's promotion of debunked conspiracy theories about the 2020 presidential election. The company needs to convince the jury that people at Fox acted with “actual malice."
• The judge has already rejected several First Amendment defenses that Fox hoped to invoke, and he further constrained Fox in a flurry of pretrial rulings last week.
• The high-stakes defamation trial, which is expected to last five to six weeks, was initially set to begin Monday, but was abruptly delayed on Sunday evening.

The court in the Dominion-Fox defamation trial reconvened as planned at 1:30 p.m. ET in Wilmington, Delaware, after a lunch break, but there has been an unexplained slowdown in the proceedings.

The trial has not yet moved to opening statements, though that is expected next.

Lawyers for both sides have been present in the courtroom since things reconvened about one hour ago.

They have been looking at their phones, talking among their colleagues and waiting.

The jury is not inside the courtroom.

The court is back in session after a lunch break and opening statements are expected to begin soon in the historic defamation lawsuit brought by election technology company Dominion Voting Systems against Fox News.

Here’s what you need to know about the high-stakes case:

Why is Dominion suing Fox News? Dominion  sued Fox News in 2021  over the right-wing network’s repeated promotion of false claims about the company, including that its voting machines rigged the 2020 election by flipping millions of ballots from Donald Trump to Joe Biden. Most of the 20 allegedly defamatory broadcasts mentioned in the lawsuit occurred in November and December 2020.

The company alleges that people at Fox News acted with actual malice and "recklessly disregarded the truth" when they spread this disinformation about Dominion. To prove “actual malice,” Dominion must convince a jury that people at Fox News who were responsible for these 20 broadcasts knew the Dominion claims were false or recklessly disregarded evidence of falsity — but  put them on-air  anyway.

According to Dominion’s theory of the case, Fox promoted these election conspiracy theories because "the lies were good for Fox’s business." Dominion’s suit specifically zeroed in on shows hosted by Lou Dobbs, Maria Bartiromo, Tucker Carlson, Sean Hannity, and Jeanine Pirro.  Dominion said that as a result of Fox’s “orchestrated defamatory campaign” it has suffered “enormous and irreparable economic harm” and that its employees have been subjected to  death threats and harassment.

What is Fox’s defense? Fox said it didn’t defame anyone and that the case is a meritless assault on press freedoms.

A spokesperson for Fox has said the network “is proud of our 2020 election coverage” and that its coverage “stands in the highest tradition of American journalism.” The company said, “Dominion’s lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights.”

Fox has also accused Dominion of generating "noise and confusion" around the case, stating, "the core of this case remains about freedom of the press and freedom of speech, which are fundamental rights afforded by the Constitution,” specifically the First Amendment.

Fox has attempted to get the lawsuit tossed. But in a major blow to the right-wing network last month, the judge overseeing the case has allowed it to go to trial. He has also  prohibited Fox  from invoking some key First Amendment defenses, finding they were without merit.

What is Dominion asking for? Dominion is seeking $1.6 billion in damages. They say Fox’s on-air lies destroyed its reputation and is causing election officials to cancel their Dominion contracts. CNN  recently reported  on the growing distrust in voting machines in heavily Republican counties.

What are the trial logistics? The trial is expected to last five to six weeks and will be overseen by Delaware Superior Court Judge Eric M. Davis, who was appointed to the state bench in 2012 by a Democratic governor. A panel of 12 jurors and 12 alternates is being seated.

Cameras are not allowed in the courtroom and there will not be any video of the proceedings. There also won’t be any still photography inside the courtroom.

Who is expected to testify? Expected witness include Fox Corporation executives  Rupert Murdoch  and his son Lachlan Murdoch; Fox News CEO Suzanne Scott and president Jay Wallace; prominent TV hosts Tucker Carlson, Sean Hannity, Maria Bartiromo, Lou Dobbs, Jeanine Pirro, and Bret Baier,  among others.

Dominion said it might also call Viet Dinh, Fox’s chief legal officer, and former House Speaker Paul Ryan, a Fox board member, to the witness stand.

Both sides are also hoping to put on testimony from their handpicked experts who specialize in election statistics, the security of voting machines, journalism ethics, the impact of disinformation in public discourse, and more.

Delaware Superior Court Judge Eric Davis has ruled in Dominion Voting Systems' favor on key questions about Fox News' defense, blocking the cable network from making some First Amendment arguments and from bringing up certain pieces of evidence.

The judge ruled that Fox can’t bring up broadcasts where reporters accurately fact-checked Trump’s lies about the 2020 election in an effort to prove that other broadcasts that amplified those lies weren’t defamatory.

Those other broadcasts “are not relevant” to the case, Davis said, because “you can’t absolve yourself of defamation by putting someone else on at a different time” who told the truth about Dominion.

The judge also ruled that Fox can’t use internal Dominion emails where its staffers said their products “suck” and were “riddled with bugs,” to prove that there were real concerns about Dominion machines. Those emails weren’t public in 2020, so they couldn’t have influenced the state of mind of Fox staffers when they promoted the Dominion claims on their shows.

But if Dominion wins and the case moves to damages, Fox can bring up these emails to show that Dominion might be losing business because of voting security concerns and not just because of alleged defamation.

Meanwhile, Davis has cleared the way for Dominion to bring up Fox’s financial information at the trial, including details about salaries of top hosts and executives. Fox tried to block this from the trial, arguing that salaries aren’t linked to ratings, and that this data could bias the jury against the network.

“Economics are relevant,” Davis said.

Despite what appeared on air, Fox News executives and hosts privately criticized the Trump camp for pushing claims of election fraud.

In an email between Fox Corporation chairman Rupert Murdoch and News Corporation CEO Robert Thomson, Murdoch’s real-time reaction to pro-Trump election deniers  Rudy Giuliani and Sidney Powell’s press conference  is captured. Murdoch controls Fox Corporation and News Corporation.

“Really crazy stuff. And damaging,” Murdoch wrote in an email on November 19, 2020. Still, Giuliani and Powell returned to Fox shows promoting the same false claims.

The email is among the private text messages and emails that were released as part of Dominion Voting Systems' defamation lawsuit against Fox News.

The defamation suit brought against Fox News by Dominion Voting Systems could have significant ramifications for the right-wing cable channel.

Opening statements are expected to begin soon in the trial, and both sides will get a chance to speak in court and present their case.

After former President Donald Trump lost the 2020 presidential election to Joe Biden, Dominion, which is an election technology company, alleges Fox pushed various pro-Trump conspiracy theories because “ the lies were good for Fox’s business.” The coverage included false and potentially damaging claims about the company’s voting technology, according to Dominion.

Fox is arguing that it was merely reporting claims made by the Trump administration and Trump’s associates. It says this case is about protecting “the rights of the free press” and that a verdict in favor of Dominion would have “grave consequences” for the fourth estate.

“Dominion’s lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights,” a Fox spokesperson said in a  statement.

What the jury has to consider: Defamation cases are hard to win in the United States, because of the Supreme Court’s ruling in New York Times v. Sullivan in 1964.

Defamation has to meet a high standard. An entity can’t have just lied, it must have known (or at least strongly suspected) it was lying at the time, and it has to have been done with “actual malice.”

The court has already ruled on the first two, saying Fox aired lies and knew they were lies. So instead of a trial on the comments' veracity, the jury will be asked to consider whether Fox made the claims maliciously .

Limits on Fox's defense: The judge has already  rejected several of Fox’s First Amendment defenses , and in pretrial rulings barred the network from arguing its guests’ allegedly defamatory statements were “newsworthy” and deserving of coverage.

As the Fox News defamation trial kicks off, the judge instructed the newly sworn-in jury to avoid media coverage of the high-stakes case and focus on the evidence presented inside the courtroom.

Delaware Superior Court Judge Eric Davis told jurors they need to “reach a just verdict regardless of the consequences.”

“Do not let rumors, suspicion, or anything else… influence you in any way,” Davis added.

He also gave them the typical instructions for jurors — like not to watch any TV coverage about the trial.

"If there is publicity about this trial, you must ignore and not read anything or listen to any television or radio programs about the case must decide the case," Davis said. "During the trial, you should keep an open mind and should not form or express any opinion about the case."

The jury is now on a lunch break. Opening statements are expected after lunch.

Dominion Voting Systems will no longer try to prove that it lost $600 million in contracts and profits because of Fox News’ election lies — but the company is still seeking $1.6 billion in overall damages and is adjusting how it will pursue that eye-popping payout at trial.

On Monday, Fox News publicly asserted that Dominion had reduced its damages claims, down to roughly $1 billion, citing an email that Dominion sent Friday to Fox’s lawyers. But the voting technology company maintains that the number hasn’t changed.

“The damages claim remains. As Fox well knows, our damages exceed $1.6 billion,” a Dominion spokesperson said Monday in a statement.

But what has apparently changed is how Dominion will try to win those damages with the jury.

Since Dominion sued Fox in 2021 , the company has claimed that it sustained about $600 million in lost contracts and profits, plus an additional $1 billion in reputational damage to the company’s value.

It now appears that Dominion will argue the entire $1.6 billion came from reputational losses, instead of partially from canceled contracts. It's unclear why Dominion is making this last-minute shift in its strategy.

Fox has aggressively pushed back on Dominion’s damages claim and says the $1.6 billion figure is massively inflated. Fox lawyers have argued that Dominion can’t prove the losses that it is claiming.

“There's also a problem that a huge chunk of their lost profits is coming from business they haven't actually lost,” Fox lawyer Erin Murphy said at a hearing last month.

As an example, Murphy pointed to a Louisiana contract where she said Dominion was “claiming lost profits on the basis of something they haven't lost.” The network’s court filings have cited a deposition from Dominion’s CFO saying the Louisiana deal is on hold because of a competitor, not because of Fox.

Dominion’s original lawsuit said, “Louisiana recently cancelled its reassessment and bid process, essentially prohibiting Dominion from securing a new $100-million-plus contract.”

In a private text message conversation with an unknown person, two days before the January 6 attack, Fox News host Tucker Carlson said, “We are very, very close to being able to ignore Trump most nights. I truly can’t wait.”

Legal filings made public on March 7 in the Dominion defamation case included private text messages, emails and deposition transcripts.

Carlson added of Trump in the same exchange, “I hate him passionately.” The Fox host said of the Trump presidency, “That’s the last four years. We’re all pretending we’ve got a lot to show for it, because admitting what a disaster it’s been is too tough to digest. But come on. There isn’t really an upside to Trump.”

For all the interest in big-name witnesses and eye-opening private text messages, at the core of the  defamation lawsuit filed by Dominion Voting Systems  against Fox News are 20 specific broadcasts and tweets in which the voting company says Fox knowingly promoted lies, destroying its reputation.

According to the lawsuit, all 20 statements took place between November 8, 2020, and January 26, 2021, and came in the form of on-air comments from Fox hosts Jeanine Pirro, Lou Dobbs and Maria Bartiromo; interviews with prominent pro-Trump election deniers Sidney Powell, Rudy Giuliani and Mike Lindell; and several of Dobbs’ tweets.

The wild allegations in the statements fell into four broad categories: that Dominion conducted election fraud, that it used algorithms to flip votes, that it had ties to Venezuela and that politicians received kickbacks to use the company.

The judge overseeing the defamation trial has already  ruled that these allegations were false, saying it is “CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true.”

At trial, it will be a jury’s job to determine if the statements were made with “ actual malice ” – a high bar based on knowing falseness or having a reckless disregard for the truth – and potentially award damages. Dominion has asked for $1.6 billion in damages and additional punitive damages, a number Fox says is wildly overblown.

Fox has denied wrongdoing and said the case is a meritless assault on press freedoms. Lawyers for Fox have argued that Dominion hasn’t come close to clearing the high bar to prove defamation.

Here’s a closer look at those 20 specific broadcasts and tweets of alleged defamation.