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A Delaware judge on Tuesday voiced skepticism that Fox News and Fox Business on-air hosts reported fairly and neutrally about unsupported allegations that a voting-machine company helped rig the 2020 presidential election.
Superior Court Judge Eric Davis made the comments as he heard pretrial arguments in a defamation case that Dominion Voting Systems brought against Fox News. Each side is asking the judge to rule in its favor before the dispute goes in front of a jury next month.
The judge, addressing Fox lawyers, questioned whether the network was entitled to free-speech protections if, as Dominion alleges, it knowingly broadcast false stolen-election claims to retain viewers who supported then-President
“What would the Supreme Court think if a publisher says, ‘I don’t care about who I am defaming because I have an economic interest to protect?’” Judge Davis asked. “Do you think that’s the First Amendment?”
The hearing came a day after the network was hit with other lawsuits in which a Fox News producer alleged Fox’s lawyers coached her to give false and misleading answers during her deposition testimony in the Dominion suit to protect male colleagues and executives.
Dominion sued Fox News for defamation in 2021, seeking $1.6 billion in damages on allegations that the network endorsed false claims that the voting-machine company helped rig the presidential election against former President Donald Trump. Fox News says it was reporting on newsworthy allegations made by the president’s supporters.
Superior Court Judge Eric Davis has received competing legal motions from Fox and Dominion attempting to sway him that enough evidence exists for their respective positions to prevail without the case going to a jury.
The bar for proving defamation is high, and will require Dominion to prove that Fox News acted with actual malice, by either knowingly publishing a false statement or showing a reckless disregard for the truth. And to win a ruling before trial, the company would have to persuade the judge that none of the key facts in the case are in doubt.
Evidence presented so far by Dominion in court documents includes internal communications and interviews from Fox executives and on-air hosts privately expressing skepticism about the allegations against Dominion, even while Fox News and Fox Business programs broadcast appearances in which Trump allies such as
Sidney Powell
and
Rudy Giuliani
made the allegations on air.
“It’s not just that Sidney Powell wasn’t a reliable source, but that the reporting can’t be characterized as neutral,” said Dominion lawyer Rodney Smolla. Defamation law, he said, is about “protecting the integrity of our public discourse itself.”
Fox Corp. and News Corp, the parent of Wall Street Journal publisher Dow Jones & Co., share common ownership.
Fox attorney Erin Murphy said Dominion can’t prove its defamation case because a reasonable viewer wouldn’t believe the hosts were making statements of fact about a stolen election but rather interviewing Trump associates about their claims.
Judge Davis said some Fox News and Fox Business hosts, such as Jeanine Pirro, Lou Dobbs and
Maria Bartiromo,
appeared to be making false factual claims against Dominion in segments where they interviewed the pro-Trump guests about the vote-rigging allegations.
Dominion told 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, Dominion lawyers said in the hearing.
Judge Davis raised that issue when questioning Fox.
“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?” the judge asked.
Ms. Murphy said the hosts didn’t make defamatory statements on air.
Dominion’s court papers cited hundreds of pages of material, including a deposition in which
Rupert Murdoch,
the chair of Fox News parent Fox Corp., said some Fox News and Fox Business commentators endorsed the idea of a stolen election to varying degrees. Mr. Murdoch said Fox News itself didn’t endorse that narrative but could have been stronger in denouncing it, according to the filing.
PHOTOS: What Fox News Insiders Said Privately About Election-Fraud Claims
Other internal documents cited by Dominion indicated there was a deep fissure in the network between high-profile prime-time opinion hosts and other personnel who were deeply skeptical of election-fraud claims.
Fox says Dominion cherry-picked quotes from internal network communications without context and that much of the voting-technology company’s alleged evidence isn’t relevant to its defamation claims. It also says Dominion hasn’t suffered the kind of financial harm it claims.
In lawsuits filed Monday against Fox News and Fox Corp. in New York and Delaware, Abby Grossberg, a producer on shows for hosts including
Tucker Carlson
and Ms. Bartiromo, said she got the impression that she should avoid speaking negatively about Mr. Carlson and other male co-workers during her deposition in the Dominion case.
“Fox’s legal team coerced, intimidated, and misinformed Ms. Grossberg as they ‘prepared’ her in connection with deposition testimony she gave in the pending defamation case,” the complaint said.
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Ms. Grossberg’s lawyers also claimed in the complaints that she experienced misogyny and antisemitism at Fox News in a workplace culture where women are undermined and discriminated against. Ms. Grossberg is currently on forced administrative leave from the network.
Fox in a statement said Ms. Grossberg’s “allegations in connection with the Dominion case are baseless and we will vigorously defend Fox against all of her claims.”
The company said it hired “an independent outside counsel to immediately investigate the concerns raised by Ms. Grossberg, which were made following a critical performance review.”
Write to Erin Mulvaney at erin.mulvaney@wsj.com and Isabella Simonetti at isabella.simonetti@wsj.com
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