Dominion can’t bring up January 6 at Fox News defamation trial, judge rules
By Marshall Cohen
Dominion Voting Systems can’t bring up the January 6 insurrection during its upcoming defamation trial against Fox News, a Delaware judge ruled Tuesday, who also revealed at a hearing that he has been receiving death threats.
The voting technology company sued Fox News over the right-wing network’s promotions of false claims that Dominion voting machines rigged the 2020 election. But almost all of the allegedly defamatory statements mentioned in Dominion’s lawsuit occurred before the January 6, 2021, storming of the US Capitol.
Delaware Superior Court Judge Eric Davis said at a hearing Tuesday that invoking January 6 would be too prejudicial with the jury, and that the case isn’t about whether Fox News “influenced” the insurrection.
“That may be for another court at another time, but it’s not for this court at this time,” Davis said.
The judge is issuing rulings on nearly two dozen pretrial motions that will set the stage for the historic trial, which is set to kick off this week, with jury selection on Thursday. Dominion is seeking $1.6 billion in damages. Fox says it didn’t defame anyone and that the case is a meritless assault on press freedoms.
But Davis ruled in Dominion’s favor on other key questions, blocking Fox from making some First Amendment arguments and from bringing up evidence that it thought would help its defense.
The judge ruled that Fox can’t bring up broadcasts where reporters accurately fact-checked Trump’s lies about the 2020 election, to prove that other broadcasts that amplified those lies weren’t defamatory.
Those other broadcasts “are not relevant” to the case, Davis said, because “you can’t absolve yourself of defamation by putting someone else on at a different time” who told the truth about Dominion.
The judge also ruled that Fox can’t use internal Dominion emails where its staffers said their products “suck” and were “riddled with bugs,” to prove that there were real concerns about Dominion machines, and therefore Fox didn’t defame Dominion. Those emails weren’t public in 2020, so they couldn’t have influenced the state of mind of Fox staffers when they promoted the Dominion claims on their shows.
But if Dominion wins and the case moves to damages, Fox can bring up these emails to show that Dominion might be losing business because of voting security concerns and not just because of alleged defamation.
Later in the hearing, Davis cleared the way for Dominion to bring up Fox’s financial information at the trial, including details about salaries of top hosts and executives. Fox tried to block this from the trial, arguing that salaries aren’t linked to ratings, and that this data could bias the jury against the network.
“Economics are relevant,” Davis said.
But Davis warned the network’s lawyers not to undercut or circumvent his rulings during their opening statements to the jury, when the high-stakes defamation trial kicks off next week.
Davis issued the warning to both sides but zeroed in on Fox News.
If Fox invokes legal defenses that Davis previously ruled were inadmissible, then “I will stop you and I will tell the jury that what you just said is incorrect” and to “disregard what you just said,” Davis said.
The judge urged lawyers from both sides to “be very careful about that.”
Fox News attorney Dan Webb told the judge, “I’m not going to step over this line.”
“It looks like you’re trying,” Davis replied.
In a major ruling last month, Davis rejected several legal defenses that Fox News hoped to use to either shut down the lawsuit, or to argue in front of the jury that it is not liable for the alleged defamation.
These unsuccessful legal defenses included claims that Fox hosts had broad First Amendment protections because they were reporting on ongoing legal proceedings — or that Fox personalities were neutrally covering “newsworthy” comments about Dominion and weren’t taking sides on the matter.
The judge overseeing Dominion’s case against Fox News also revealed Tuesday that he has received death threats.
“I’ve sent you things that I’ve received,” Davis told lawyers from both sides, during a discussion about separate death threats targeting Dominion employees.
The discussion revolved around whether Dominion can bring up death threats and harassment that its employees have faced after the 2020 election. Davis ruled that Dominion can tell the jury about the existence of the threats, but can’t get into the content of the threats, because Fox obviously doesn’t directly control what uninvolved third parties say.
“I’m not downplaying it,” Davis said to the Dominion lawyers. “You need to take every threat seriously. I take every threat seriously.”
Dominion has argued that many of the threats were inspired by Fox, which the network denies. If Dominion wins, it wants Fox to pay for the beefed-up security measures that it implemented after 2020. A court spokesperson declined to comment about the threats against Davis.
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