Rekubit Exchange:Judge rules Fox hosts' claims about Dominion were false, says trial can proceed

Delaware Superior Court Judge Eric M. Davis ruled Friday that Dominion Voting Systems' blockbuster defamation suit against Fox News over baseless claims it had cheated former President Donald Trump of victory in the 2020 elections could Rekubit Exchangeproceed to trial.

In addition, Davis ruled that Dominion had already proved the contested statements' falsity. The jury that is scheduled to be seated in the trial in several weeks won't have to weigh their validity; instead, the judge will instruct them that they are false.

"The evidence developed in this civil proceeding demonstrates that [it] is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true," Davis wrote in a 80-page decision notable for the tough stance it took against Fox's legal defense.

That means Dominion can now publicly say the allegations made on numerous Fox broadcasts about the election company have been declared by a court of law to be false.

"We now have a finding, as a matter of law, that Fox defamed Dominion," says Thomas Wienner, a retired Michigan-based corporate litigator who has been monitoring the case for NPR. "A lot of the arguments that Fox has been making are now gone. As to Fox News, the only remaining liability issue is whether it had the requisite state of mind to be held legally responsible for its defamatory statements."

In a further instance, Davis ruled against Fox's argument of a "neutral reporting" privilege that protects it from any liability if it accurately conveys the allegations of newsworthy people. The network's lawyers say it was covering inherently newsworthy claims about a national election made by inherently newsworthy people - a sitting president and his lawyers and surrogates.

Davis utterly rejected that approach, as a matter of law and a matter of the facts in this case.

Fox has argued the 19 statements Davis ruled on Friday as false or "mixed opinion" — that is, opinions that viewers would reasonably believe to be rooted in fact — were taken out of context.

But Davis swept away Fox's claims that its opinion shows deserve greater protections under First Amendment principles that give political speech broad berth than straight news reporting would receive.

Citing shows of Fox's Maria Bartiromo and Jeanine Pirro from late 2020, for example, Davis wrote that guests and their outlandish accusations were more than simply relayed: the network repeatedly granted them credibility and even affirmed them.

"The context in which the Statement is presented creates an inference to a reasonable viewer that it is factual," Davis wrote. "When viewed in the full context of the overall communication expressed during the segment, a reasonable viewer would understand that the Statement is asserting facts regarding Dominion, not an opinion." (Prior to Dominion's claims that Fox was defaming it in late 2020, the network classified Bartiromo as a news anchor, not an opinion host.)

In a public comment late Friday afternoon, Fox invoked the constitutionally envisioned role of the press in a free society.

"This case is and always has been about the First Amendment protections of the media's absolute right to cover the news," a Fox News spokesperson said. "Fox will continue to fiercely advocate for the rights of free speech and a free press as we move into the next phase of these proceedings."

A Dominion spokesperson said the company was "gratified by the Court's thorough ruling soundly rejecting all of Fox's arguments and defenses, and finding as a matter of law that their statements about Dominion are false. We look forward to going to trial."

Davis also found that Fox committed defamation "per se" - which means that Dominion's reputation was so slandered that it does not need to prove it suffered actual financial harm to be eligible to receive damages.

While Fox has said Dominion is asking for more than it is worth, the damages would be pretty substantial, because the claims were made directly against their business practices, according to Carl Tobias, a University of Richmond professor of constitutional law who specializes in cases involving the First Amendment.

"If you're in the business of guaranteeing free and fair elections, what could be worse than being called a cheat?" says Tobias.

In effect, Davis left only three hurdles for Dominion to surmount to win the case.

The voting tech company must convince a jury that Fox committed "actual malice." Under a 1964 U.S. Supreme Court ruling, that means Fox either willfully ignored or had reason to know that what it was broadcasting was false.

It must convince a jury of the amount of damages it has sustained.

A jury is to decide whether parent company Fox Corp., led by Rupert and Lachlan Murdoch, share in the culpability of the defamation.

Actual malice is considered a very tough standard that helps protect the U.S. press and make it the envy of the world. Whatever evidence Dominion presents in court, it needs to show that Fox knew – or had reason to know — that the statements it aired against the company were false.

However in this case, Tobias notes, Dominion has acquired an extraordinary trove of evidence reflecting knowledge from Fox producers, hosts, executives, and corporate bosses that what they were putting on the air about Dominion was untrue.

A fresh batch of evidence that would seem to aid Dominion's cause in proving actual malice was released publicly for the first time earlier Friday.

For example, in a newly surfaced exchange, on Nov. 12, 2020, star host Dana Perino emailed a colleague that "this dominion stuff is total bs." The network continued to carry such claims for weeks.

Dominion filed suit against Fox News and its parent company in March 2021, saying that baseless and debunked claims that its voting machines flipped votes from Donald Trump to Joe Biden permanently damaged its reputation and resulted in loss of business.

The voting tech company is asking for $1.6 billion in damages but Fox News claims that Dominion's losses do not amount to anywhere near that much.

Dominion's revenue in 2021 was $94.6 million, according to legal filings.

Mary Yang and Karl Baker contributed to this story.