Editor’s note: This version of the story was updated April 17 to reflect the delay of the trial.
The trial in Dominion Voting Systems’ defamation lawsuit against Fox News and its parent corporation was slated to begin April 17, but has been delayed for one day to allow conversations about a possible settlement agreement, the Washington Post reported.
Delaware Superior Court Judge Eric M. Davis announced the delay April 16 and did not provide a reason for doing so. But according to the Washington Post, two people familiar with the case who spoke on the condition of anonymity said both parties plan to meet April 17 to discuss the possibility of a settlement agreement to avoid trial.
Jury selection began April 13 for the trial which focuses on Fox News and its parent corporation’s false claims that the voting technology company contributed to voter fraud in the 2020 Presidential election. Twelve jurors will decide if Fox aired those falsehoods about Dominion knowing that they were false or with reckless disregard for the truth.
For months, this case has made headlines as the pre-trial deposition testimony from Fox Chairman Rupert Murdoch and Fox hosts provided a behind-the-scenes look into the networks’ actions and motivations.
During the selection process, Judge Davis asked the potential jurors questions that both sides have agreed to, including if they have “worked in a newsroom” or if “they regularly watch any Fox News programs,” Reuters reported. The goal is to find jurors who can impartially judge the case.
After Judge Davis concludes his questioning and selects 36 jurors from the pool, each attorney will have six “peremptory strikes,” which is when an attorney can dismiss a juror without providing a specific reason. The selection process was slated to conclude April 14 but is expected to finish April 17 because some jurors couldn’t return to court, according to the Washington Post. At the end of the selection process, there will be 12 jurors and six alternates.
The jury must decide if Fox News and its parent corporation acted with actual malice, Judge Davis ruled March 31.
He left it to the jury to determine whether Fox acted with actual malice — “these are genuine issues of material fact and therefore must be determined by a jury,” he wrote in the ruling.
The voting technology company sued the TV network and the corporation that owns it for $1.6 billion in March 2021 for defamation after the network alleged that Dominion’s technology was used to rig the 2020 presidential election.
In late January, Judge Davis ruled that Dominion would be considered a limited public figure in the trial, requiring the technology company’s attorneys to prove actual malice.
The actual malice standard was established by the 1964 Supreme Court decision in New York Times v. Sullivan, in which the court held that public officials and public figures can’t prevail in a defamation suit without proving that a statement was false and that, in addition, it was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
The courts have defined reckless disregard as proof that the defendant entertained serious doubts as to the truth or had a high degree of awareness of probable falsehood, and published anyway.
See more of First Amendment Watch’s coverage of the lawsuit here
On April 12, just a day before the start of jury selection, Judge Davis sanctioned Fox News as attorneys for Dominion claimed they had recently received more evidence in the case. Judge Davis added that if Dominion had to hold more depositions or redo any because of this new evidence, then Fox must “do everything they can to make the person available, and it will be at a cost to Fox,” the New York Times reported.
Judge Davis, according to the Times, also said he may bring in an outside lawyer to investigate how discovery was handled by Fox and if Murdoch plays more of a role in what is broadcast on the TV network than Fox’s attorneys initially argued.
The trial in Delaware Superior Court is slated to run five weeks.
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