Delaware Superior Court Judge Eric Davis appeared skeptical of Fox News’ claim that it was only neutrally reporting on newsworthy claims by a sitting president around the 2020 election, in a pretrial hearing this week for the Dominion Voting Systems suit against the media outlet. Lawyers for both Fox and Dominion Voting Systems tried to convince the judge to give them a pretrial win Tuesday, in an effort to avoid going to a jury trial next month. Two years ago, Dominion filed a $1.6 billion defamation suit against Fox over its 2020 election coverage, when the network amplified election lies pushed by Donald Trump and his allies. The election technology company alleges that Fox News knowingly spread false information about Dominion for the sake of juicing ratings and profits; Fox, however, has argued its coverage is protected by free speech and press freedom rights.
At one point during the hearing, Davis suggested that Fox News host Maria Bartiromo misled her audience when “she made it sound like she had no knowledge, one way or the other” if claims about Dominion were true in November 2020, by which point, Dominion said, she had already been told they were false. “How can you be fair if you are knowingly providing false information?” Davis asked, per CNN. During the hearing, Dominion lawyers noted that Dominion informed Fox “more than 3,600 times that the election claims from Trump allies were false, and the network’s own system to backstop and fact check—known as the brain room—determined the allegations weren’t true ahead of nearly all of the broadcasts in which the claims were aired,” the Wall Street Journal reported. Davis, questioning Fox, asked, “If I go to the brain room, and they say we fact-checked this and it’s not true and I go on and report it, I can avail myself of neutral reportage, even if it’s not true? How can that be neutral?”
Fox News attorney Erin Murphy noted that Fox News didn’t make up the vote-rigging accusations against Dominion. “This is something that was coming from the President and his legal team… you really can’t analyze this case while pretending that this wasn’t going on,” she said, adding that Fox did not report such claims about Dominion “to be true.” Rather, Murphy told the judge, “all we ever did was provide viewers with the true fact that those allegations were being leveled by the sitting President and his lawyers, all throughout the country.” Davis, though, appeared to question Fox’s editorial judgment more broadly during this time: rather than amplify the pro-Trump conspiracy theories, “it could have been a bigger story that a President who lost an election was making all these unsubstantiated false allegations,” he said.
Davis also pushed back against Dominion’s legal arguments at times, the Washington Post noted: after a Dominion lawyer argued that Fox had misled viewers into believing false statements of fact that hurt Dominion’s business, Davis asked, “people can’t believe opinions? They can only believe facts?”
Tuesday’s hearing was the first insight into the judge’s perspective on the case, a legal battle that has dominated headlines in recent months with a series of court filings packed with explosive testimony and internal communications. (Fox has claimed that Dominion “mischaracterized the record” and “cherry-picked quotes stripped of key context.”) To win the case, which Davis on Tuesday stressed he has not “pre-decided,” Dominion has to prove a legal standard known as “actual malice,” meaning that Fox guests, hosts, and executives knew what was being said on air was false and let it happen anyway, or acted with “reckless disregard” for the truth. It’s a high bar for Dominion to clear, but as the University of Utah’s RonNell Andersen Jones told CNN, “There seems to be at least some skepticism from the judge about whether this was mere neutral journalism or instead the deliberate endorsement of a falsehood.”
Proceedings resumed Wednesday, when lawyers are set to finish their arguments. It’s unclear when Davis will issue a ruling, and unlikely that he will toss the case entirely. It’s possible, though, that he could narrow the scope of it by ruling on some aspects, the Post notes.