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Dominion Voting Systems and Fox News face key hurdles in defamation suit hearing

NBC News 3/21/2023 Jane C. Timm and Kevin Collier
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WILMINGTON, Delaware — Dominion Voting Systems lawyers believe that their evidence in hundreds of pages of briefs against Fox News and Fox Corp. is so convincing that a jury trial isn’t even needed to decide if they were defamed— at least that’s what they tried to convince a judge Tuesday in a key hearing on its $1.6 billion defamation suit.

Fox News, however, argued that the First Amendment covers its conduct completely.

The voting systems manufacturer, the television network and its parent company have all asked the judge to weigh in — seeking what is called summary judgment — on a number of parts of the case.

Arguments will also spill over into a second day unexpectedly, Delaware Superior Court Judge Eric Davis said Tuesday afternoon after nearly seven hours into the hearing. They will restart Wednesday at 9:30 a.m., and are expected to run till about noon.

Dominion presented first on Tuesday, arguing there’s no defense for the claims Fox News published. Some of the evidence they cited — quotes from Fox journalists expressing outrage and incredulity over the claims they were reporting — garnered a few chuckles in the courtroom.

"Fox essentially made Sidney Powell a celebrity, a household name. It was Fox's repetition that gave it the resonance, the gravitas," Rodney Smolla, one of the attorneys for Dominion, said in opening arguments.


“The outcomes of these motions have the potential to be incredibly consequential — not just for the parties but for the future of defamation and free speech law,” said RonNell Andersen Jones, a professor at the University of Utah College of Law who specializes in the First Amendment.

Any ruling could sharply limit and shape the future of the historic and sweeping defamation case, deciding which claims will be considered, who could be held liable for them and what questions the jury will be asked to answer.

For example, Delaware Superior Court Judge Eric Davis could agree with Dominion that the statements it has argued are defamatory — that Dominion is tied to the late Venezuelan President Hugo Chávez and that its equipment was used to rig the 2020 election for President Joe Biden, to name two — are indeed false, sparing the jury from having to consider evidence in the matter.

If that happens, Dominion's case would then focus on whether Fox News and Fox Corp. acted with "actual malice" — knowing falsity or reckless disregard for the truth — in publishing the claims.

Or Davis could agree with Fox Corp. that Dominion’s evidence of the parent company’s involvement in Fox News broadcasts and tweets is too slim, handing Fox Corp. Chair Rupert Murdoch a win on that front and leaving Fox News to defend its actions alone.

Both sides are likely to face tough questions; at a status hearing this month, Davis said he is known for interjecting questions.

Each of the alleged defamatory broadcasts and tweets will be considered, Andersen Jones said, and the hearing will be illustrative for watchers of the case.

The filings and the hearing Tuesday will "give a really useful preview of what we could expect a jury to see next month," she said.

The judge could issue a ruling immediately after the hearing or wait a number of days.

Jury selection is scheduled to begin April 13, with trial kicking off the next week, on April 17.

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