The Delaware Superior Court judge overseeing Dominion Voting Systems’ $1.6 billion defamation lawsuit warned defendant Fox News on Tuesday that its “newsworthiness” arguments – which had been shaping up to be a major pillar of the network’s case – would be on thin ice as the trial gets underway next week.
Judge Eric Davis made the comments Tuesday during a pre-trial conference including lawyers from both Fox and Dominion. The hearing was not made available for streaming or dial-in, but Washington Post media reporter Eric Wemple was threading highlights from the conference on his Twitter feed:
Davis, a former corporate lawyer known as an affable and unshakably straight-shooting judge, has made headlines with his comments and rulings throughout the pretrial process. At one hearing he pointed the finger at former Fox host Lou Dobbs as a major contributor to the pile of examples Dominion says were defamatory; he also challenged the notion that Fox top brass had “no control” over guests and narratives presented on cable’s most-watched network.
Though it might seem like Davis has only been dealing losses to Fox, he has agreed with them on one major point: That the Jan. 6 Capitol riot, which happened after the alleged defamation, is not relevant, and should not be discussed at any length, in part because it could “prejudice” the jury against the network.
But Davis’ skepticism around the “newsworthiness” argument, which Fox has been repeatedly signaling it would pursue, could be an issue for Fox attorneys. Davis went as far as to say he would “rebuke” attempts to evoke the newsworthiness argument in the presence of jurors. Davis went on a “riff,” Wemple reported, “pointing out that Dominion could quite easily – very easily – exploit Fox News’s newsworthiness defense in cross-examination.”
He suggested that among other things, Dominion lawyers cross-examining Fox witnesses could simply ask them why they didn’t have guests who upheld the integrity of the election – why not Joe Biden himself? “I love this cross … I could have a lot of fun with this case,” Davis said with a chuckle.
Dominion is asking for $1.6 billion in damages for what it says are defamatory statements about its voting machines in multiple reports, guest segments and host commentary. Fox has maintained it was merely reporting the news, and has dug in its heels on what could be a landmark First Amendment case.
Jury selection was expected to begin later this week, with opening arguments beginning next Monday in Delaware.
