As Dominion Voting Systems’ $1.6 billion lawsuit against Fox News heads to a trial next week, the judge in the case placed limits on what attorneys can and cannot bring up before the jury.
Judge Eric M. Davis said that he would restrict references to the January 6th attack on the Capitol, saying that they would be prejudicial and were not relevant to the case.
“Stay far away from it,” he told attorneys at a pre-trial hearing on Tuesday.
Dominion’s attorneys argued that the references were important because of messages showing that, after the attack on the Capitol, Fox executives wanted to “pivot” away from Donald Trump’s stolen election claims.
But Davis said that attorneys could still question a figure like Rupert Murdoch more generally on why the network wanted to veer away from Donald Trump and his vote rigging allegations. In messages previously disclosed in the case, Murdoch wrote on January 8 to a former executive Preston Padden that Fox News is “very busy pivoting. We want to make Trump a non person.” Several days later, Murdoch told son Lachlan to tell a Fox Corp. board member that “Fox News, which called the election correctly, is pivoting as fast as possible. We have to lead our viewers which is not as easy as it might seem.”
The judge also limited what Dominion could say to the jury about threats that the company received as Trump and his allies made numerous false allegations that it was involved in vote rigging. Dominion attorneys have argued that, amid the allegations made against the company and amplified on Fox News, it was forced to increase security and harmed its ability to recruit employees.
Davis said that he was not downplaying the threats, but “I don’t want the jury to be completely swayed by a person who is not in control of Fox.” He said that he would allow references to the threats generally, but cautioned Dominion attorneys not to go into specifics unless Fox made an issue of them.
The judge indicated that he, too, has received threats and sent them to the attorneys in the case.
As he went through a series of motion, Davis also ruled in favor of Dominion on a number of points. He said that Fox could not argue that a defense in the case was over the newsworthy value of the election rigging claims. The judge noted that he already rejected that defense in a summary judgment ruling last month.
That said, Davis indicated that Fox News personalities who appear as witnesses could not be stopped from saying that they invited certain guests on their shows because they thought they were of newsworthy value. Dominion, Davis argued, could then easily counter the witness in cross examination. “I love that cross,” the judge said, noting that the election company’s lawyers could merely ask the witness why they invited Sidney Powell or Rudy Giuliani, two Trump allies who guested multiple times on the network in the immediate aftermath of the 2020 election, but not others, like experts in election security.
Davis also said that Fox could not defend itself by introducing evidence that it presenting segments elsewhere on the network that pushed back against the claims made by Trump allies.
“You can’t absolve yourself of defamation by merely putting someone on at a different time to say a different statement,” Davis said.
Dominion sued Fox News and later Fox Corp. over unfounded claims amplified by personalities and guests that the company was involved in rigging the 2020 presidential election.
The jury will have to decide whether Fox News engaged in actual malice, or that it knew the claims about Dominion were false or showed reckless disregard as to whether it was. The jury also will have to decide whether parent Fox Corp. is liable, as well as what level of damages the company must pay if it rules in Dominion’s favor.
Fox News has said that it was covering the undoubtedly newsworthy allegations being made by Trump and his allies.
Jury selection in the case is scheduled to start on Thursday.
More to come.