The judge in the defamation case against Fox News

Disclosing Dominion’s Legal Team and Fox News Executives from Scott’s Defamation of Biden’s Campaign for Election Fraud

For days after the election, Trump and his top aides demanded the network rescind its announcement of Biden’s victory in Arizona, even pressuring the network’s controlling owners, Rupert and Lachlan Murdoch. The advisers of Donald Trump were hosted by a group of Fox News stars in the weeks after the election to peddle baseless conspiracy theories about election fraud. Many of those false claims asserted without evidence that Dominion’s technology and machines had been used to rig the vote and to cheat Trump of the White House.

The voting machine and technology company’s attorney, Justin Nelson, revealed Scott’s remarks in a court proceeding on Tuesday in which he argued that Dominion’s legal team is entitled to receive the employment contracts of 13 Fox News executives, including Scott. She has been CEO for a while. The network’s parent company, Fox Corp, is also being sued.

Delaware Superior Court Judge Eric M. Davis affirmed that the contracts should be given to Dominion.

According to Nelson’s remarks at the hearing, senior Fox News executives interceded to try to block Fox Business stars Lou Dobbs and Maria Bartiromo from having Trump’s campaign attorneys, Sidney Powell and Rudy Giuliani, on their shows to repeat such lies. In late 2020, Dobbs and Bartiromo hosted Trump’s advocates to make those accusations.

In his exchanges with the judge, Keller drew a line distinguishing between a host or producer “who are sometimes pre-scripting material for the show, that is going to be tethered to a specific channel’s telecast” and a network executive.

He said that the person will be far removed from the day to day operations of editorial control and discretion over the particular channel’s broadcast. Jay Wallace, Fox News president and executive editor, and Meade Cooper, the executive vice president of primetime programming are just a few of the executives whose contracts are being sought.

Nelson, the Dominion attorney, retorted by citing a document obtained from Fox that “talks about the daily editorial meeting that occurs, including almost all of these executives that we’re looking at right now.”

Dominion sued Fox for airing false claims that it helped cheat then-President Donald Trump of a win in the 2020 elections. Both sides filed motions asking Davis to grant them victory before the jury trial in April. The motions are under seal, meaning they have not been made public.

Under U.S. Supreme Court rulings, Dominion has to prove Fox demonstrated “actual malice” to win a defamation case. That means either knowingly broadcasting false and damaging information, or doing so with reckless disregard for the truth.

No one at Fox would directly comment on Baker and Glasser’s assertions, other than Baier, who released a statement taking some issue with how his objections were framed. A person with direct knowledge of Fox’s election coverage has told NPR that there was a technical glitch that delayed the call for the full White House win for Biden.

In hosting Fox’s first post-election interview with Trump that November, Bartiromo echoed Trump’s disproven allegations of electoral fraud, saying, “This is disgusting, and we cannot allow America’s election to be corrupted.” She told viewers in mid-December that “an intel source” told her that Trump had won the election. Bartiromo never returned to explain what grounds the source made that statement, despite being designated a news anchor. (Fox no longer publicly characterizes her as an anchor, which had rooted her in the news side of Fox, as opposed to an opinion host.)

In December 2020, Dobbs contended on the air that Trump’s opponents within the government had committed “treason,” and later suggested any action by a Republican officeholder to uphold Biden’s victory might have been “criminal.” His departure from the network was announced a day after the election software company, Smartmatic, sued the network for defamation related to false accusations of fraud. That case is not as far along in the process.

In recent weeks, Dominion has argued that Fox host Jeanine Pirro – a former district attorney and New York state judge as well as a Trump confidant – sits at the heart of its case. NPR previously revealed the existence of an anguished email from a Fox News producer begging colleagues to keep Pirro off the air because she was circulating lies about election fraud from dark corners of the Internet.

Fox News defended its conduct by mentioning the importance of the American free speech principles bound up in the First amendment, saying that the case of Smartmatic was attempts to chill independent reporting and commentary.

Murdoch’s family now live in Australia, where the media magnate has taken a seemingly conflicting stance all over the globe. A political columnist for the magazine Crikey accused the Murdochs of being “unindicted co-conspirators” in the insurrection at the U.S. Congress by Trump supporters because of the false fraud allegations and the hyper-charged rhetoric ahead of the planned rally.

Murdoch is accusing a smaller media outlet of defamation. He has forced the site to pay for highly critical commentary several times previously, and he plans to use the suit to examine recent changes to libel law in that country. Media outlets have less legal cover in Australia than they do here in the U.S.

The fate of a $1.6 billion defamation lawsuit against Fox News lies, for the moment, in the hands of a plainspoken judge known for his unflinching poker face.

Delaware Superior Court Judge Eric M. Davis, a 12-year veteran of the state’s bench and former corporate attorney, has often sought to temper emotions in the contentious proceedings between the broadcasting giant and Dominion Voting Systems, a voting-technology company. The sides have accused each other of being in bad faith.

“If he were to be given a name in culture, it would be Cool Hand Luke,” says Joseph Hurley, a criminal defense attorney based in Wilmington who has argued before Davis but has no involvement with the case. “In court, he never shows any emotion, and I mean that in a good way.”

The Motion to Retweeve Fox News: A High-Tensor Investigation of the Newsmax-Dominion Defamation

Finally, Davis ruled that Smartmatic could reasonably allege that Newsmax defamed the company even in statements that did not name it. Newsmax wants the court to read every single statement in its entirety.

Like Dominion, Smartmatic was the subject of false claims that its software had switched Trump votes to Joe Biden. The claims were aired on Newsmax and Fox News.

The judge stated that Newsmax either knew its statements regarding Smartmatic’s role in the election-fraud narrative were false or it had high degree of awareness that they were probably false.

John Culhane is a professor of law at the Delaware Law School and he said that the judge was not having any Newsmax arguments.

While Culhane, an authority on defamation law, cautions against drawing too strong a conclusion from the Newsmax ruling, he says Davis “is very clear and he’s very step-by-step when it comes to the law.”

A statement was issued yesterday by Fox News saying that there was nothing more news-worthy than covering the president of the United States and his lawyers. We are confident we will prevail as freedom of the press is foundational to our democracy and must be protected.”

Smartmatic has sued Fox for $2.7 billion, but it’s not as far along as Dominion’s. On Tuesday, a New York state appellate court rejected Fox News’ motion to have the Smartmatic case against the network and several of its stars dismissed. The ruling dismissed claims against parent company Fox Corp, saying no cause was stated.

Smartmatic attorney Erik Connolly said it would file an amended complaint that “details the involvement of [Fox Corp. leaders] Rupert Murdoch and Lachlan Murdoch.”

Newsmax’s attorneys use a legal privilege called “neutral reportage” which allows it to present “unprecedented allegations without embracing them as true, so that the public could draw its own conclusions.”

The First Amendment protects reporters in order to ensure a robust and un intimidated press, but that’s not the whole story. He said a neutral reportage principle does not protect a publisher who “deliberately distorts” statements to “launch a personal attack of [its] own on a public figure.”

The stakes are very high in the two cases. Yet Davis does not seek to amplify his own profile. His court didn’t make a photo of him available for this story. The hallmark of the Delaware legal bar is an air of comity around the proceedings.

In the Feb 8, 2015, court hearing in the Fox suit, Davis apologized to the rival lawyers, saying he had been surprised to read an email in which he made fun of them.

He pinned it on his use of a pat phrase. “You know that typical sarcastic thing that judges say?” Davis asked, “How do you know?” Don’t tell me I’m wrong. It means that I’m making some kind of statement. That was not the reason I was doing it.