NEW YORK -- Without citing a reason, the Delaware judge overseeing a voting machine company's defamation lawsuit against Fox News announced late Sunday that he was delaying the start of the trial until Tuesday.
The trial, which has drawn international interest, had been scheduled to start this morning with jury selection and opening statements.
The case centers on whether Fox defamed Dominion Voting Systems by spreading claims that the company rigged the 2020 presidential election to prevent former President Donald Trump's reelection. Records produced as part of the lawsuit show that many of the network's hosts and executives didn't believe the allegations but aired them anyway.
Claire Bischoff, a Dominion spokesperson, said the company would have no comment on the trial delay. Representatives for Fox News and its parent company, Fox Corp., the entities Dominion is suing, did not immediately return requests for comment. In his statement, Delaware Superior Court Judge Eric Davis said only that the trial, including jury selection, would be continued until Tuesday and that he would announce the delay in court today.
That's when Fox News executives and the network's star hosts were scheduled to begin answering for their role in spreading claims about the 2020 election.
Jurors hearing the lawsuit must answer a specific question: Did Fox defame the voting machine company by airing claims alleging that the election was stolen from then-President Donald Trump, even as many at the network privately doubted the claims being pushed by Trump and his allies?
Yet the broader context looms large. The trial will examine freedom of the press and the reputation of a popular conservative news source. It will also illuminate the flow of misinformation that helped spark the Jan. 6, 2021, riot at the U.S. Capitol and continues to be used in Trump's campaign messages.
Fox News personalities Tucker Carlson and Sean Hannity and founder Rupert Murdoch are among the witnesses expected to testify over the next few weeks.
Barring a settlement, opening statements are now scheduled for Tuesday.
"This is Christmas Eve for defamation scholars," said RonNell Andersen Jones, a University of Utah law professor.
Recent rulings and document releases have increased the amount of potential evidence in Dominion's favor.
Dominion alerted Fox hosts and executives thousands of times that the claims were false, documents show. "You guys know this is all bulls***. Everyone knows it," Tony Fratto, a veteran public relations strategist working on behalf of Dominion, wrote Nov. 24 to Fox News President Jay Wallace.
"This is reckless." Fratto, who served in the George W. Bush administration, also wrote to Fox News finance journalist Maria Bartiromo, calling the claims from Sidney Powell and Rudy Guiliani "tinfoil hat conspiracy stuff."
Dominion filed the lawsuit in March 2021.
The courts have historically granted the media wide latitude to make honest mistakes about public figures, which can include companies. Dominion has to prove that Fox behaved with "actual malice" -- meaning its hosts and executives knew the claims were false, or had a high degree of doubt, but aired them anyway. Dominion claims Fox, panicked about ratings as rival right-wing networks went all in on the stolen-election myth, gave the claims airtime to appease Trump-supporting viewers.
"The emails, texts and deposition testimony speak for themselves," Dominion said in a statement. "We welcome all scrutiny of our evidence because it all leads to the same place -- Fox knowingly spread lies causing enormous damage to an American company."
Court papers released over the past two months show that Fox executives, producers and personalities privately disbelieved Trump's claims of a fraudulent election. But Dominion says Fox News was afraid of alienating its audience with the truth, particularly after many viewers were angered by the network's decision to declare Democrat Joe Biden the winner in Arizona on election night in November 2020.
"I hate him passionately," Carlson texted a colleague about Trump on Jan. 4, 2021. Murdoch fretted in the weeks after the election that the lame-duck president seemed to be going "increasingly mad."
Laura Ingraham, another prime-time host close to Trump, expressed disdain for Powell, the lawyer appearing on Fox shows accusing Dominion of fraud. "A complete nut," Ingraham texted.
The heart of Dominion's case will likely rest on other messages, many from lesser-known executives and producers, expressing doubt and concern about the election conspiracy theories circulating on Fox shows.
"I worry about claiming all this election fraud. The allegations are so slim," Tiffany Fazio, a producer for prime-time personality Sean Hannity, texted Nov. 6, 2020, to Porter Berry, a longtime Hannity producer who is now a network executive. "Gotta stay away from crazytown," he replied.
"This sounds SO F****** CRAZY btw," Fox executive Raj Shah emailed a colleague while watching Rudy Giuliani speak about supposed voter fraud at a Washington news conference.
Some rulings by the presiding judge, Davis, have eased Dominion's path. In a summary judgment, Davis said it was "CRYSTAL clear" that fraud allegations against the company were false. That means trial time won't have to be spent disproving them at a time when millions of Republicans continue to doubt the 2020 results.
Davis said it also is clear that Dominion's reputation was damaged, but it will be up a jury to decide whether Fox acted with "actual malice" -- the legal standard -- and, if so, what that's worth financially.
Davis has limited Dominion's potential evidence for the trial, ruling that the company can't suggest that Fox's election falsehoods contributed to the Jan. 6 riot at the U.S. Capitol. Nor can Dominion detail threats company employees received after Fox aired the claims.
And the onus ultimately rests with Dominion to prove that the people responsible for what was said on air knew better.
Fox witnesses would likely testify that they thought the allegations against Dominion were newsworthy, but Davis made it clear that's not a defense against defamation -- and he will make sure the jury knows that.
New York law protects news outlets from defamation for expressions of opinion. But Davis methodically went through 20 different times on Fox when allegations against Dominion were discussed, ruling that all of them were fully or partly considered statements of fact and fair game for a potential libel-finding.
"A lawsuit is a little bit like hitting a home run," said Cary Coglianese, law professor at the University of Pennsylvania. "You have to go through all of the bases to get there." The judge's rulings "basically give Dominion a spot at third base, and all they have to do is come home to win it."
Fox and Dominion are incorporated in Delaware, though Fox News is headquartered in New York and Dominion is based in Denver.
APOLOGY TO JUDGE
Fox angered Davis this past week when the judge said the network's lawyers delayed producing evidence and were not forthcoming in revealing Murdoch's role at Fox News. A Fox lawyer, Blake Rohrbacher, sent a letter of apology to Davis on Friday, saying it was a misunderstanding and not an intention to deceive.
It's not clear whether that would affect the trial. But it's generally not wise to have a judge wonder at the outset of a trial whether your side is telling the truth, particularly when truth is the central point of the case, Jones said.
The suit will likely depend on whether Dominion can prove Fox acted with actual malice by putting something on the air knowing that it was false or acting with "reckless disregard" for whether it was true. In most libel cases, that is the most difficult hurdle for plaintiffs to get past.
Dominion can point to many examples where Fox figures didn't believe the charges being made by Trump allies such as Powell and Giuliani, but Fox says many of those disbelievers were not in a position to decide when to air those allegations.
"We think it's essential for them to connect those dots," Fox lawyer Erin Murphy said.
The jury will determine whether a powerful figure like Murdoch -- who testified in a deposition that he didn't believe the election-fraud charges -- had the influence to keep the accusations off the air.
"Credibility is always important in any trial in any case. But it's going to be really important in this case," said Jane Kirtley, director of the Silha Center for the Study of Media Ethics and the Law at the University of Minnesota.
Kirtley is concerned that the suit may eventually advance to the U.S. Supreme Court, which could use it as a pretext to weaken the actual malice standard that was set in a 1964 decision in New York Times Co. v. Sullivan. That, she feels, would be disastrous for journalists.
"The journalistic sins, which have already been exposed here, are so grievous and so indefensible that a victory for Fox will be hard to explain to the public," said Floyd Abrams, senior counsel at Cahill Gordon & Reindel, who has long represented media companies.
"If the message of the case is 'anything goes,' that one can [book guests] who you know are lying and saying defamatory things and you, as a broadcaster, don't get in trouble at all," he added, that would mean adopting "the cynical view that this is what the press is, and this is what the press does."
Dominion's lawsuit is being closely watched by another voting-technology company with a separate but similar case against Fox News. Florida-based Smartmatic has looked to some rulings and evidence in the Dominion case to try to enhance its own defamation lawsuit in New York. The Smartmatic case isn't yet ready for trial but has survived Fox News' efforts to get it tossed out.
Many experts are surprised Fox and Dominion have not reached an out-of-court settlement, though they can at any time. There's presumably a wide financial gulf. In court papers, Fox contends that the $1.6 billion damages claim is a wild overestimate.
Dominion's motivation may also be to inflict maximum embarrassment on Fox with the peek into the network's internal communications after the election. Text messages from January 2021 revealed Carlson telling a friend that he passionately hated Trump and couldn't wait to move on.
The trial has had no apparent effect on Fox News' viewership; it remains the top-rated cable network. Fox's media reporter, Howard Kurtz, said earlier this year that he had been banned from covering the lawsuit, but the network has since changed direction. Kurtz discussed the case on his show Sunday, saying he would be in Wilmington for the beginning of the trial.
The trial is expected to last into late May.
Information for this article was contributed by David Bauder and Jennifer Peltz of The Associated Press and by Elahe Izadi, Jeremy Barr and Sarah Ellison of The Washington Post.
FILE - Dominion Voting Systems ballot-counting machines are lined up at a Torrance County warehouse during testing of election equipment with local candidates and partisan officers in Estancia, N.M., Sept. 29, 2022. Dominion Voting Systems' defamation lawsuit against Fox News for airing bogus allegations of fraud in the 2020 election is set to begin trial on Monday, April 17, 2023, in Delaware. (AP Photo/Andres Leighton, File)
FILE - Rupert Murdoch introduces Secretary of State Mike Pompeo during the Herman Kahn Award Gala on Oct. 30, 2019, in New York. Dominion Voting Systems' defamation lawsuit against Fox News for airing bogus allegations of fraud in the 2020 election is set to begin trial on Monday, April 17, 2023, in Delaware. Fox News stars Tucker Carlson and Sean Hannity and founder Rupert Murdoch are among the people expected to testify over the next few weeks. (AP Photo/Mary Altaffer, File)
FILE - A person walks past the Fox News Headquarters in New York, April. 12, 2023. Dominion Voting Systems' defamation lawsuit against Fox News for airing bogus allegations of fraud in the 2020 election is set to begin trial on Monday, April 17, 2023, in Delaware. (AP Photo/Yuki Iwamura, File)
FILE- Fox News commentator Sean Hannity speaks during an interview at Fox News Studios, March 16, 2023, in New York. Dominion Voting Systems' defamation lawsuit against Fox News for airing bogus allegations of fraud in the 2020 election is set to begin trial on Monday, April 17, 2023, in Delaware. Fox News stars Tucker Carlson and Sean Hannity and founder Rupert Murdoch are among the people expected to testify over the next few weeks. (Photo by Evan Agostini/Invision/AP, File)