Attorneys for Dominion Voting Systems told a judge in Delaware that Fox News personalities and executives knew that baseless allegations of vote manipulation in the 2020 presidential election were false but continued to air those claims and host the people who made them.
Both parties are seeking summary judgment, each asking the judge to declare them the winner without having to proceed towards a jury trial as scheduled next month.
The company has sued Fox for $1.6bn in a defamation lawsuit alleging that the network, risking losing its viewership and impacting its business, knowingly presented false claims that energised competing networks that were faithful to conspiracy theories elevated by former president Donald Trump and his allies.
“They chose to let the story be out there – to let out the hoax, to release the Kraken,” according to lawyer Rodney Smolla, referring to a nickname for Sidney Powell, an attorney allied with Mr Trump whose false statements about the company are central to the lawsuit’s claims. “And why? Because Fox viewers were abandoning Fox.”
Dominion argues that its evidence meets the high bar for proving “actual malice”, alleging that Fox aired defamatory statements knowing that they were false or with reckless disregard for the truth. Fox News has strongly disputed Dominion’s claims and argued that Fox’s coverage is well protected by the First Amendment.
Dominion attorneys also asked Delaware Superior Court Judge Eric Davis to order Fox Corporation chair Rupert Murdoch and his son, Fox Corp CEO Lachlan Murdoch, to testify in court.
Lawyers for the voting machine company argued that the Murdochs gave clear instructions to Fox News leadership after the 2020 election to “shut down the talk of fact-checking” and “let the hosts run wild” with baseless election conspiracy theories that are central to the false claims against Dominion.
“They made the decision to let it happen,” Dominion attorney Justin Nelson told the judge. “There is an obligation to stop it once he is made aware of it.”
Dominion’s legal team also is seeking to compel testimony from Fox Corp’s chief legal officer Viet Dinh and board member Paul Ryan, the former Republican Speaker of the House of Representatives.
Attorneys for Fox told the court in a filing on 20 March that the judge should “decline to compel their appearance at trial due to the hardships on those witnesses, and the undue burden given their limited knowledge of pertinent facts.”
Dominion should instead rely on the “lengthy depositions” already covered in court documents, Fox attorneys argued.
“Compelling live testimony at trial will add nothing other than media interest. But this is a trial, not a public relations campaign,” according to Fox’s legal team.
Judge Davis said he is keeping an open mind as he considers arguments.
“I have not pre-decided this,” he said. “Everybody is going to get an opportunity to speak.”
Fox News attorneys have claimed that it was rightfully airing newsworthy claims endorsed by then-President Trump, but Judge Davis appeared to question the network’s news judgment and approach towards covering such claims.
“It could have been a bigger story that a president who lost an election was making all these unsubstantiated false allegations,” he said.
The hearing on 21 March came hours after a pair of explosive lawsuits from a Tucker Carlson Tonight producer who claimed that the network’s lawyers coerced her into providing misleading testimony for her deposition in the case months earlier.
Abby Grossberg’s lawsuits argue that such coercion joins a legacy of discriminatory conduct towards women at the network.