What to know
- Dominion Voting Systems abruptly settled its defamation lawsuit against Fox News before either party delivered its opening statement in the trial.
- Fox settled for a staggering $787.5 million, a Dominion lawyer said outside the Delaware courthouse where the trial was set to begin. The voting systems company initially sought $1.6 billion.
- Dominion filed its lawsuit against Fox in March 2021, alleging the network knowingly broadcast falsehoods alleging Dominion engaged in 2020 election fraud.
Did special master order play role in hefty settlement?
A four-page order Judge Davis filed at 11:43 a.m. ET today while he was still on the bench could have been what pushed a settlement over the edge.
That order, which followed a testy pretrial hearing last week during which Davis announced he would sanction Fox for discovery noncompliance and/or misrepresentations to the court, appointed a special master to investigate Fox News and Fox Corp.’s respective discovery conduct.
Among the powers Davis gave the special master were the right to take his own depositions of any person at any location of his choosing and generally within five calendar days. And not only did Davis make plain that the special master’s investigation would be on Fox’s dime but he also declared that Fox could not refuse any request for information on grounds of attorney-client privilege or the attorney work-product doctrine, which generally protects attorneys’ thought processes and work product in connection with litigation.
My guess is that beyond their fear of a massive jury verdict or the further embarrassment of Rupert Murdoch, his son Lachlan, or even Fox primetime hosts being cross-examined for all the world to hear in real-time, the discovery issue here — and its further excavation by a special master with broad powers — was the motivation Fox needed to pay up–and get out.
If the settlement includes or leads to the termination of the special master’s appointment, you’ll know I was barking up the right tree. Stay tuned.
Don't expect Tucker Carlson and pals to apologize
It seems Dominion’s decision to settle its case against Fox News comes with a hefty price tag but no on-air apologies. We know that Fox had agreed to pay $787.5 million dollars, approximately half of the amount sought by Dominion in the case. And we expect the terms of the settlement will not require Fox News hosts to publicly apologize to viewers for spreading lies and falsehoods about the 2020 presidential election.
We have some clues that Fox will not have to issue an apology. First, at a press conference following news of the settlement, Dominion’s lawyers affirmatively opted not to answer questions about whether there were additional terms to the settlement.
Second, at that same press conference, Justin Nelson, one of Dominion’s lawyers, said “Money is accountability and we got that today from Fox.” This seems to indicate that the payment of the money itself is the acknowledgment of the lies.
Third, Fox Corp., for its part, predictably tried its best to downplay the settlement, saying only “we acknowledge the court’s rulings finding certain claims about Dominion to be false.”
This settlement is reportedly more than three times larger than any previous settlement or verdict in a defamation case involving a media corporation. Dominion is hoping the price tag alone will be a message to the public that Fox lied. But, a payment is not the same as a statement, and it certainly looks like we won’t see Fox News hosts look into the camera and tell us, “I lied to you about the election.”
It’s worth remembering that Dominion’s lawsuit is not the only one filed against Fox News for spreading lies about the 2020 election. Smartmatic, another voting technology company, has sued Fox for $2.7 billion. Smartmatic has to be looking at this settlement, and Fox’s apparent deep desire to avoid a public trial, and wondering how this bodes for its chances of extracting more than a monetary settlement.
Is there more to the settlement than $787.5 million?
Admittedly, it’s a strange question.
Dominion secured a staggering sum in settling this historic case. But Dominion also cast itself as fighting on behalf of democracy against a ruthless right-wing network that tore at the fabric of that democracy — namely, the sanctity of elections, by airing false claims about them. Therefore, I had wondered whether what was preventing settlement until this point may have been that Fox was prepared to pay a hefty sum but didn’t want to, say, issue a public apology.
We may not know the full terms of the settlement, so it’s possible there are non-monetary conditions that we just don’t know about yet. But it’s difficult to truly assess this historic case until we know the full extent of the settlement. And if it is just the (huge amount of) money, without additional non-monetary action from Fox, it may be worth a conversation about how valuable this otherwise eye-popping settlement is.
What's missing from Fox News' statement on settlement
Fox Corp. has issued a statement acknowledging the settlement:
“We are pleased to have reached a settlement of our dispute with Dominion Voting Systems. We acknowledge the court’s rulings finding certain claims about Dominion to be false. This settlement reflects Fox’s continued commitment to the highest journalistic standards. We are hopeful that our decision to resolve this dispute with Dominion amicably, instead of the acrimony of a divisive trial, allows the country to move forward from these issues.”
There's a noticeable omission from that statement, as my colleague Lisa Rubin pointed out:
Fox News settles Dominion case for staggering $787.5 million
In a press conference outside the courthouse, Dominion lawyer Justin Nelson announced Fox News settled with Dominion for $787.5 million. Dominion initially sought $1.6 billion.
That's a lot of Donald Trump NFTs!
Dominion abruptly settles with Fox News, details unclear
It was almost a trial for the ages, until Dominion abruptly settled with Fox news. We don't yet know the terms of the settlement.
Judge Davis dismissed the jurors and praised the lawyers' "professionalism" throughout the case.
Dominion v. Fox News case has been 'resolved,' judge says
Judge Davis announces Dominion and Fox News has "resolved" its case.
What could be behind this hourslong delay
Opening statements were supposed to start at 1:30 p.m. ET, but here we are more than two hours later with nothing to show for it. The attorneys for Fox and Dominion were seen huddling in the courtroom. Were they discussing settling the matter before going forward with opening statements? There was speculation that settlement talks were why the trial’s start was delayed from yesterday to today.
To be sure, there are any number of reasons that a trial could be delayed, many of them far less epic than settlement, such as a necessary party getting sick or stuck in traffic.
We should hopefully learn soon, as the judge said they’d be concluding proceedings by by 4:30 p.m. ET each day.
Judge appoints special master to investigate Fox News' pretrial actions
The trial hasn’t even started but the judge presiding over the case has asked a special master to investigate whether Fox News violated its obligation to provide evidence to Dominion during the pretrial exchange of evidence.
According to the court order filed this morning, the special master’s report is due May 15, when, given the pace of the trial thus far, we should be in the middle of this defamation case.
The judge already sanctioned Fox for failing to provide evidence and specifically stated that Fox has a “credibility problem.”
If the jury agrees that Fox has a credibility problem, so much so that its hosts and guests knew they were lying when they spread falsehoods about the 2020 election, that is game over for Fox in this trial.
It seems unlikely this order is the cause of the current delay, given in part that it was filed at 11:43 a.m. ET. The trial was expected to resume at 1:30 p.m. ET.
Trial still hasn't resumed. What's the hold-up?
Judge Davis said the trial was to resume at 1:30 p.m. ET after a lunch break, but that hasn't happened yet. It's unclear what's behind the hold-up. So far, it's been a relatively uneventful first day in court.
The judge said earlier that Dominion and Fox News are each expected to take about 90 minutes to make their opening statements. Assuming they present those statements today, that already puts us past 4:30 p.m. ET — the time Davis said he expects proceedings to wrap each day.
This isn't Fox News' only tango with defamation allegations
Reminder: Fox News is preparing for another potential defamation trial in a multibillion-dollar lawsuit filed by Smartmatic. Like Dominion, Smartmatic has accused the network of broadcasting lies that its voting technology engaged in 2020 election fraud.
A New York state appeals court in February rejected Fox's motion to dismiss the lawsuit.
And earlier this month, Fox News said it reached a settlement with Venezuelan businessman Majed Khalil, who had filed a defamation suit accusing the network of promoting falsehoods that he helped rig the election against Trump. The terms of that settlement have not been made public.
‘I can’t do this’: Alternate juror replaced before trial begins
One of the alternate jurors was replaced this morning after reportedly saying they "can’t do this.” It's unclear what caused their hesitancy— the prospect of a six-week trial, the weight of a once-in-a-lifetime verdict, some combination of the two or a third option altogether.
Whatever was behind the juror's statement apparently convinced Judge Davis it wasn’t worth risking. Some judges are stricter than others about excusing jurors or prospective jurors, but if someone doesn’t think they can sit for the trial — or at least says they can’t — even if only an alternate, better to learn that now than later and seat someone more solid.
Swarm of lawyers entering court looks like scene from 'The Birds'
Dozens of lawyers descended upon the Delaware Superior Court in Wilmington this morning — some representing Dominion and others there to defend Fox News. That's a lot of legal firepower.
Photos of the scene looked like something out of the 1963 film "The Birds." I expect the trial to be far less dramatic though.
Why they're technically opening statements, not 'arguments'
Before breaking for lunch, Judge Davis reminded the lawyers that their opening statements should be just that: statements, not arguments. But savvy lawyers know that, while the judge is technically correct, opening statements provide an opportunity to make at least an implicit argument to the jury.
That is, in laying out what they expect the evidence in the case to show (or not show), the lawyers will be looking to plant narrative seeds for jurors, hoping their respective narratives stick in jurors’ minds during the lengthy trial, so that, when it comes time for closing arguments, they can then circle back to whatever themes they developed in their openings.
So, whatever label is slapped on the words about to come out of the lawyers’ mouths this afternoon, they’re crucial and could set the tone for the weeks of evidence to come.
A major focus of judge's jury instructions? Lunch
The first morning of the most important defamation trial in decades ended with a fairly lengthy discussion about when the jury would break for lunch, and how long their days would typically be.
Did it feel anticlimactic for you? It did for me. But it’s worth remembering that this is a discussion judges have with juries in courtrooms throughout the country every day. Sure, it might feel disappointing after all of the hype about the legal and political implications of this case. Could this case reshape defamation law as we know it? Maybe. But this is going to be a long trial, and jurors, like most other humans, want to know their schedules, including their meal breaks. It’s largely up to the judge to respect the jurors’ time, and so far he appears poised to do just that.
There’ll be plenty of legal drama in the coming weeks. For now, it’s lunchtime.
Don't expect witness testimony today
Judge essentially instructs jurors to be fair and balanced
Before sending the jurors off to lunch, Judge Davis gave them routine preliminary instructions. Among other things, he told jurors to focus on the evidence, ignore publicity about the trial, avoid bias for one side or the other, and keep an open mind.
You could say that he instructed them to be ... fair and balanced.
First recess of the day has commenced
After instructing the jurors, Judge Davis recessed the court for a one-hour lunch break. Opening statements will begin after trial resumes at 1:30 p.m. ET.
Fox might take issue with DeSantis' stance on suing media giants
Fox is fighting to survive Dominion’s mammoth defamation claim under a standard Florida Gov. Ron DeSantis thinks is already too protective of cable news.
A bill DeSantis has championed in the Florida Legislature not only aims to make it easier to sue major media like Fox News for defamation but contains other provisions that even fellow conservatives warn could endanger free speech and political commentary across the ideological spectrum.
DeSantis’s war on defamation law as it exists may win him favor with newer, fringier outlets, but it also potentially puts him at odds with the biggest prospective megaphone for his 2024 campaign: the Fox News ecosystem.
Trial is underway, person booted from courtroom
Judge Davis has brought in the jury and is instructing them ahead of opening statements. The expected agenda for today will be jury instructions followed by a lunch break followed by opening statements, first from Dominion and then Fox News, the judge said.
Minutes ago, Davis noted that a person was removed from the courtroom for taking a photo, which was subsequently deleted. The judge warned everyone present to refrain from taking photos or tweeting from the courtroom, warning that a person could be held in contempt if they fail to abide by his rules.
Can Fox survive a potential billion-dollar loss to Dominion?
As MSNBC analyst Carlos Curbelo told "MSNBC Reports" moments ago when asked whether Fox could survive a potential billion-dollar loss in the Dominion trial:
That’s the big question here. What does all of this do to the Fox brand? Not just the Fox brand but if we zoom out a little more, the whole Trump movement and all of the lies that it is built upon. Will this actually wake up a significant portion of the American public to the lies that have been advanced for years now based on absolutely no evidence?
The monetary damage is one thing, and sure they can probably survive that, but the question is, what happens to this whole movement, this whole industry, that has been built around Donald Trump and the lies that he’s advanced? Do enough people realize how dishonest this has all been? And do they turn away and start holding people accountable for all the lies that they’ve been told?
Settlement still a possibility in the Dominion v. Fox News case
Though this historic trial is about to be underway, a settlement is still possible if the parties come to an agreement. Settlement talks were rumored in connection with the delay yesterday, but there’s no official sign that a settlement is near. Nonetheless, it’s possible, as MSNBC legal analyst Harry Litman explained on air Tuesday morning:
[Fox News] went to the judge and said, “Give us another day.” They must have said, “We’re getting there.” But then, they likely returned yesterday and said they’re not there yet and the judge said, “I’m not gonna hold, we’ve chosen 12 jurors, I’m not gonna just tell them to sit around. We’re gonna have to keep going. You’re gonna have to go on and try the case in the day and continue settlement negotiations at night.” So, I don’t think settlement by any means is off the table.
We’ll keep an eye out — or ear out, since it’s not televised — as proceedings get underway in Delaware. But until we hear otherwise, Dominion seems intent on having its day in court.
Buckle up: All the jurors have officially been sworn in
It's happening, folks. NBC News' Julia Jester reports that all 12 jurors and all 12 alternative jurors have now been seated. Judge Davis is currently giving instructions to the jury and opening statements should follow shortly.
If Dominion wins, the jury will decide how Fox News must pay
If Dominion prevails, Dominion will recover a monetary judgment, perhaps a massive one. Fox News argued that Dominion has not suffered any damages. But here again, Judge Davis has already and unequivocally rejected that argument, leaving the calculation of damages to the jury.
Libel law terms can be arcane, but ancient legal concepts have real-world consequences. The court has also already ruled that Fox News’ false statements were libel per se. This means that the falsehoods were so naturally injurious to Dominion that the plaintiff need not prove actual damages such as lost business or proven reputational damages. Damages are presumed. If the jury finds Fox News or its parent company acted with actual malice, the jury can assess whatever damages it believes are justified.
Read more from my piece about the trial's high stakes below.
Inching closer to opening statements, as jurors seated
The 12 jurors have been seated, NBC News' Julia Jester reports. The court will now select the 12 alternate jurors who will listen to the trial as well.
That means we're inching closer to hearing Dominion's opening statements in the trial, which are expected to provide a road map of how the company's lawyers intend to convince the jury that Fox News acted with actual malice.
Fox News' opening statements are set to follow Dominion's presentation.
The lies at issue here require punishing Fox for its speech
The lies at issue in this case are lies that go to the heart of our faith in a democratic system of government. These aren’t white lies. They must be punished.
Dominion is suing Fox News for falsely stating that Dominion tried to rig the presidential election for President Joe Biden.
Tiles in this case are all about trying to undermine our faith in free and faith elections. These are not white lies (“You haven’t gained an ounce!”) and they are not even equivalent to a prototypical defamatory statement (“You committed a crime!”). These lies go to the foundation of a representative democracy — elections we can trust.
Lawyers have arrived, jury selection to wrap up
The lawyers for each side have arrived in Delaware Superior Court to appear before Judge Eric Davis.
We’re looking forward to opening statements to learn more about the narratives that each side will present to the jury. But before we can get to those statements, the court needs to finalize jury selection, and then we can get underway.
There’s only one thing for Dominion left to prove
Defamation law requires that Dominion show that Fox News published a false statement of fact about Dominion that caused Dominion harm, and that Fox News did so with actual malice.
The judge has already concluded that Dominion has proved much of its case. The only thing left for Dominion to prove is that Fox News acted with actual malice, meaning they knew their statements were false or entertained serious doubts about their falsity.
The actual malice standard appropriately balances the harms that come from lies with the freedom of speech. We don’t punish all vile and harmful speech. The First Amendment requires that we only punish speakers who possess actual malice, at least in cases such as this one.
Fox's judge woes may have just gotten even worse
Fox News already found itself in hot water with Judge Davis in the lead-up to the trial after he sanctioned the network's legal team for withholding evidence and accusing it of having a “credibility problem.” New reporting isn't helping Fox's standing with the judge.
Former Fox News producer Abby Grossberg — whose recordings made while at the network have already been the subject of pretrial hearing controversy — has come forward with more evidence that could potentially be used against her former employer, NBC News reported Monday.
According to NBC News:
Grossberg, who worked as a senior producer for hosts Maria Bartiromo and Tucker Carlson, alleged in a new sworn statement obtained by NBC News that Fox lawyers ignored repeated reminders about an additional cellphone in her possession and did not search it during court-ordered discovery. ...
In the statement, Grossberg said she repeatedly told Fox lawyers that she had an inoperable company-issued cellphone that she used during 2020 election coverage. Fox lawyers told her to hang on to the device but never searched it or copied her files, as they did with her other phones, according to the statement.
Tucker Carlson, Sean Hannity and other Fox News hosts may testify
Fox News lawyers said they plan to make available Fox News hosts Tucker Carlson and Sean Hannity, along with other high-profile figures at the network, to testify during the trial.
Judge Davis ruled earlier this month that he can compel Rupert Murdoch, chairman of Fox News parent company Fox Corp., to take the stand if Dominion subpoenas his testimony.
What’s Fox’s defense going to be?
Remember, Fox News is heading into trial severely limited by pretrial rulings won by Dominion. Judge Davis noted, for example, that it’s “CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true.” So, that argument is out the window.
University of Utah law professor RonNell Andersen Jones observed Monday on "Deadline: White House" that the network may therefore need to lean into how heavy a burden Dominion has to prove its case.
Under the “actual malice” standard, plaintiffs need to show that defendants knowingly published false information or did so with reckless disregard for the truth. It’s a notoriously difficult test for plaintiffs to meet, but Dominion has amassed an unusual volume and degree of evidence in that regard. Opening statements should provide a roadmap of how each side wants the jury to see its case.
The jurors live in the same county where Biden once served
Fifty years before he was inaugurated as president of the United States, Joe Biden was sworn in as a member of Delaware’s New Castle County Council.
That’s the same county from which this trial’s jury was drawn. Perhaps unsurprisingly, registered Democratic voters outnumber registered Republicans by nearly 2.5-to-1 in the county of roughly 570,000.
New Castle, which includes Wilmington, has backed the Democratic candidate in every presidential election since 1992. In the election at the heart of this lawsuit, Biden outperformed Trump by 37 percentage points.
Judge correctly stripped Fox of its First Amendment defense
Judge Davis stripped Fox of the heart of its defense after the network tried to avail itself of two specific First Amendment defenses. The judge correctly decided that the network failed to show it can argue either at trial.
First, Davis ruled that Fox could not rely on the “neutral reporting privilege,” which allows members of the media to claim they were merely accurately reporting on newsworthy allegations, and hence cannot be liable for defamation. The judge ruled Fox’s claim that it “conducted good-faith, disinterested reporting” was undercut by the evidence.
Second, the judge ruled that Fox could not use a “fair report privilege,” which allows members of the media to avoid liability where they are fairly and truly reporting on statements made in an official proceeding, like a lawsuit. The problem for Fox is that here, as the judge concluded, “Most of the contested statements were made before any lawsuit had been filed in court.”
Fox News reporter claimed he was muzzled by network
Howard Kurtz hosts “MediaBuzz” for Fox News. The longtime journalist’s bio on FoxNews.com touts him as a renowned media reporter who has won awards for his media coverage.
However, there’s one media topic he allegedly wasn’t allowed to cover: Dominion’s lawsuit against his network.
“I can’t talk about it or write about it, at least for now,” Kurtz told viewers in late February. “I strongly disagree with that decision, but as an employee, I have to abide by it. And if that changes, I’ll let you know.”
As Ja’han Jones noted for The ReidOut Blog at the time:
“The irony in Fox News’ predicament can’t be overstated: The network is currently engaged in a real conspiracy to hide its coverage of a fake conspiracy.”
In the weeks that followed, it appears Kurtz’s bosses reconsidered and allowed him to weigh in.
Dominion v. Fox News, explained
Opening statements in the historic Dominion v. Fox News defamation trial are expected this morning after court proceedings kick off around 9 a.m. ET.
Here's how we got here, in a nutshell:
- Fox News broadcast lies from Donald Trump and his allies about the 2020 election, including false claims that Dominion rigged its voting machines to help Joe Biden win the election.
- Dominion filed a defamation lawsuit against Fox News in March 2021, seeking a staggering $1.6 billion in damages.
- A trove of internal Fox communications, including Fox News hosts' text messages, obtained by Dominion during pretrial discovery suggested network talent and officials appeared to know the claims about Dominion were false and aired them anyway.
- Judge Davis ruled last month that claims of Dominion unlawfully meddling in the 2020 election were false, but ordered a trial to determine whether the network acted with actual malice when broadcasting those falsehoods.
No cameras or recordings are allowed inside the courtroom as the trial unfolds. So follow along here for the latest updates as we listen in on the proceedings.
For more about the case, check out my colleague Jordan Rubin's post: