Try to forget that Tucker Carlson called Donald Trump a “demonic force” who could “destroy us.” Try to ignore that Rupert Murdoch said, “We want to make Trump a non-person” after the January 6 insurrection. Try to disregard that Laura Ingraham told Carlson and Sean Hannity that the rest of Fox “hates us.” I know it’s a big ask—and one that Fox News will likely be requesting from a jury in the coming weeks as well. But it’s time to (temporarily!) dispense with all the gossipy and gory talk about who was backstabbing whom and why. Right now it’s time for Dominion Voting Systems to make its case in court, the culmination of its blockbuster $1.6 billion defamation lawsuit against Fox.

All of those quotes come from a private cache of texts and emails Dominion made public in a series of pretrial legal filings in February and March, prompting days of embarrassing news coverage for Fox. “It was catnip for the press,” an executive remarked. Fox accused Dominion of pushing “irrelevant and misleading information to generate headlines” in a statement. The truth is, the messages’ disclosure deepened preexisting rifts inside the network and made everyone miserable. Dominion had revealed the private feelings of the most powerful people in right-wing media—the executives who are supposed to run Fox News and the hosts who actually do. But come day one of the trial, Murdoch’s low opinion of Trump won’t really matter, nor will Ingraham’s lamentations about her personal standing at work. 

What will matter are the circumstances around key moments in November and December of 2020: In the weeks after the election, did Fox have actual knowledge it was spreading lies about Dominion? Did it act with “reckless disregard for the truth”?

With jury selection for Dominion v. Fox News underway, and proceedings slated to begin on Monday, Dominion’s lawyers will set out to prove that Fox was guilty of “actual malice” when it aired segment after segment disparaging the company and defending Trump.

Dominion’s lawsuit accuses Fox of specific wrongdoing on 20 occasions, so the lawyers have 20 at-bats to convince the jury of Fox’s culpability. The suit says that Fox published four categories of proven falsehoods about Dominion: that Dominion rigged the 2020 election for Joe Biden, that its algorithms manipulated vote counts, that Dominion is owned by a company founded in Venezuela, and that Dominion paid kickbacks to government officials who used its machines. It only needs one of the examples to stick, though that would likely mean the jury would choose a lower-dollar figure for damages.

Lest we forget, all of these claims were critical to building the Big Lie that Trump was, in fact, a winner, not a loser, and that he could stay in power for another four years. Fox’s audience wanted to believe it: Viewers were “going through the five stages of grief” after Biden was named president-elect, Fox News Media CEO Suzanne Scott wrote to her boss, Lachlan Murdoch, two days after news outlets projected Biden’s victory. Meanwhile, some of Fox’s biggest stars were bolstering that feeling of denial among viewers by promoting a “rigged election” conspiracy theory.

Employees and part-time contributors felt the tug away from reality and toward fantasy. Mo Elleithee, a former spokesman for the Democratic National Committee, joined the network in 2016 because, he says, he wanted Fox viewers to hear from an actual Democrat, not just Republican caricatures of liberals. In the run-up to the election in 2020, “I was doing hits anywhere from three to five days a week,” Elleithee tells me. He re-upped his commentator contract a few days before Trump lost. “But then in the immediate aftermath,” he says, “as election denialism was really starting to gain traction and take hold, I found myself being put on air with election deniers.” He put a stop to it, refusing to “debate” a made-up side. “I was very aggressive in pushing back on election denialism,” he says. And then, the Fox producers stopped calling. He remained a paid contributor, but averaged just one segment a month, he recalls. “They just stopped booking me.” When Fox offered a contract renewal last December, Elleithee declined. Fox had no comment on Elleithee’s departure.

Dominion is right that the network’s shows aired proven falsehoods over and over again. The trial judge, Eric Davis, has already ruled that the lies were, indeed, lies. Some of the offending TV segments and tweets invoked one or two of the claims against Dominion. At least two segments managed to incorporate all four. There’s no debating whether it happened. The fight in trial is now about state of mind.

It’s a high standard to meet—one set nearly 60 years ago in a landmark Supreme Court case, New York Times v. Sullivan. The justices ruled that public figures could only prevail in defamation suits if they proved the lies were pushed “with knowledge that it was false or with reckless disregard of whether it was false or not.” Still, Dominion’s lawyers are heading into opening arguments feeling supremely confident, and they have plenty of reason to be.

Fox’s primary defense, initially, was that the outlet was merely covering newsworthy allegations made by powerful political figures. In pretrial proceedings, the judge shredded several of Fox’s arguments. It does not matter, he said Tuesday, that guests, not Fox hosts, made many of the most inflammatory statements about Dominion. “It’s a publication issue, not a who-said-it issue,” he said, and Fox was the publisher. Davis also dismissed the fact that a Dominion representative was interviewed on a Fox newscast hours after one of host Maria Bartiromo’s fraud-filled rage-casts. The representative tried to set the record straight about Dominion; naturally, the segment was much lower-rated than interviews with Trump-aligned lawyer Sidney Powell. But even if every single Bartiromo junkie had tuned in for the corrective segment, Fox would still be on the hook. “You can’t absolve yourself of defamation by merely putting somebody on at another time to say something different,” Davis said. On Wednesday, the setbacks for Fox continued: Davis scolded Fox’s attorneys about possible “misrepresentations” and expressed deep concern that Murdoch’s lawyers withheld key evidence from the other side.


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