Fox and Dominion urge the judge to rule the defamation lawsuit

In a bid to avoid a jury trial next month, attorneys for Fox Corp. and Dominion Voting Systems presented their arguments before a Delaware judge this week. The argument was about Dominion's $1.6 billion defamation lawsuit.

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On Tuesday, Fox and Dominion both presented their cases before Judge Eric Davis in Delaware's Superior Court. This is part of their request for summary judgment, which means they are looking for a decision based on their arguments and proof without proceeding to trial.

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Fox and Dominion will appear in court on Wednesday morning despite the fact that their disagreements weren't resolved on Tuesday. Davis said he was still considering their arguments and wasn't sure whether he could make a decision before the trial on some issues.

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Both sides' push for summary judgment has resulted in the publication of a wealth of material in recent weeks. This includes thousands of pages of full testimony and snippets from depositions, texts, and emails.

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Dominion claimed the channels and their hosts promoted untrue accusations that their voting machines were rigged in the 2020 election, which saw Joe Biden defeat Donald Trump. Dominion filed a defamation action against Fox Corp. and its right-wing cable networks Fox News and Fox Business.

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Dominion's lawyers identified nearly two dozen occasions on Tuesday when they think broadcasters on Fox News and Fox Business have repeatedly asserted there was electoral fraud. These broadcasts frequently featured guests who reinforced that assertion as truth, including Trump attorneys Rudy Giuliani and Sidney Powell. They cited the voluminous texts and emails in which hosts like Tucker Carlson expressed their skepticism toward the visitor and the charges of election fraud in support of this.

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Davis urged Dominion's attorneys on Tuesday to use statements made on-air as evidence of their defamation claim rather than statements made in internal conversations.

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The lawyers focused on broadcasts hosted by Lou Dobbs and Maria Bartiromo, as well as several from Carlson, Sean Hannity, and Jeanine Pirro. In these broadcasts, allegations of problems with Dominion's software algorithms, bribery, and cybersecurity were repeated on the air despite being refuted.

Dobbs' tweets at the time were also used as supporting documentation. The judge overseeing the lawsuit, Davis, reportedly told a Fox attorney, "There seems to be a Dobbs problem."

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The voting system company must demonstrate, according to Dominion attorney Justin Nelson, that for each broadcast, there was at least one employee "who knew the claims were false or recklessly disregarded the truth," by providing specific examples.

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Fox's alleged "brain room," where fact-checking for its programming is done, was also mentioned by Dominion lawyers. Dominion claims that Fox management and hosts disregard it.

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Dominion asserted that Fox News and the executives of its parent company acted maliciously by repeating bogus electoral claims and frequently promoting guests like Powell and Giuliani. It hoped the judge would decide in its favor.

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Fox's legal team responded by arguing that whether the hosts of Fox News believed the claims or agreed with what their guests were saying, it didn't prove they acted maliciously in covering newsworthy charges of election fraud that originated with Trump. (Trump's baseless allegations of election fraud are the focus of numerous criminal investigations.)

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Fox attorney Erin Murphy also built the media company's case around the idea that "any reasonable viewer" of the news would be able to discern what were allegations or facts on Fox's networks. On a slide in court on Tuesday, Fox demonstrated that the basis of its case was "whether the press accurately reported the allegations, not whether the underlying allegations are true or false."

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During Murphy's explanation of Fox's case, Judge Davis questioned Fox's use of the term "a reasonable viewer" and if "fact checkers don't matter" in regards to Fox's "brain room."

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Murphy cited a segment on MyPillow Founder Mike Lindell, a Trump admirer who promoted conspiracy theories related to the election, as evidence that "a reasonable viewer" can distinguish between news and opinion. Any "fair spectator" would find his or her topics confusing.

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Murphy added on Tuesday that it was crucial to show that Fox News, not Fox Corp., the network's parent corporation, published these allegations. Fox Corp. and its networks are both being sued, so this is another significant factor.

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The hearing was held after revealing sensibilities was made public in recent weeks. These records show emails, text messages, and testimony from top Fox executives and hosts, many of whom expressed skepticism about the allegations being presented on television.

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In the months after the election, some anchors repeated unsubstantiated allegations of fraud, according to chairman Rupert Murdoch. The data also demonstrated that Suzanne Scott, the CEO of Fox News, was in touch with Murdoch at the time.

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Dominion contends that Fox, its broadcast networks, and its talent falsely asserted that its voting machines were involved in the manipulation of the 2020 election results. Fox has repeatedly refuted accusations that it made misleading statements with knowledge and has contended that the First Amendment protects it.

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Experts and watchdogs for the First Amendment have been closely following the case.

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A plaintiff must prove both that the person or company they are suing made false claims that hurt others and that they acted with "actual malice," which means they should have known the statements they made were false.

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Libel suits usually involve a single untruth. However, in this instance, Dominion offers a long list of instances of Fox TV hosts making inaccurate statements despite being aware of their falsity. The First Amendment provides considerable protection for media companies.

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These disputes are frequently resolved outside of court or swiftly dismissed by a judge, but according to a prior article by Trade Algo, neither party has had such negotiations.