WILMINGTON, Del. (CN) — Jury selection began Thursday in the expected landmark trial over Fox News coverage from the 2020 election that spread false conspiracy theories about ballot-counting software.
In the lead-up to the blockbuster proceedings, counsel for Fox earned a sanction from the trial judge for withholding litigation information such as the dual roles of Rupert Murdoch, who is both the chair of Fox Corp. and the executive chairman for Fox News.
“I am very concerned that … there have been misrepresentations to the court,” Judge Eric M. Davis is said to have remarked Wednesday.
In addition to admonishing Fox's lawyers, Davis ordered the attorneys to collect and preserve all related internal communications, adding that, “Fox has a credibility problem.”
Davis meanwhile declined to grant the relief requested by Fox's courtroom opponent, Dominion Voting Systems, which asked the judge to hold separate trials against Fox News and its parent company, Fox Corp.
Fox, for its part, notes that Murdoch's role at the organizations are a matter of public record. He has been listed as executive chairman on SEC filings since 2019, and that Dominion referenced this information in a court proceeding.
Dominion is suing Fox for $1.6 billion for airing claims that it says the network knew were false about supposed irregularities with Dominion voting machines in the 2020 presidential election.
During another hearing this week, former Fox News producer Abby Grossberg claimed that the network failed to turn over recordings of conversations between Fox hosts and conspiracy theorists pushing the false narrative that Democrats stole the election.
Such evidence is considered key to proving whether Fox News hosts like Maria Bartiromo acted recklessly in repeating claims they were repeating from people like Trump lawyer Sidney Powell that were known to be unfounded.
In one email Powell reveals that her source for the voter fraud claims is a woman who says she has special powers and is capable of “time-travel in a semiconscious state.”
Grossberg filed her own lawsuit against Fox News for pressuring her into giving misleading testimony in the Dominion suit. Recently, she revised her deposition in the Dominion suit to note that she did not trust the other Fox producers because they were “activists, not journalists.”
Judge Davis noted during pretrial hearings that he is considering appointing a special master to investigate the actions of Fox’s legal team. Fox will also have to pay for any additional depositions that Dominion might need to get information that was withheld.
The landmark defamation trial hinges on whether Fox News is protected by the First Amendment for airing false claims.
Seeking the same protections given to any media company covering the news, Fox says it was merely fulfilling its duty to report on the claims from then President Donald Trump that the election was stolen.
Judge Davis has limited this defense ahead of trial. “Just because someone is newsworthy doesn’t mean you can defame someone,” the judge reportedly said on Tuesday.
In a motion for summary judgment motion, Dominion focused on the timing of when Fox News began airing falsehoods about the election. Fox was among the first networks to call Arizona for Joseph Biden during the drawn-out ballot-counting process after the election. This is believed to have alienated some of its core viewers, who began defecting to news outlets on the far-right such as Newsmax that had embraced Trump’s claims of fraud.
Dominion argues in its briefings that Fox was intent on recapturing the viewers it lost, so it invited Trump lawyers like Sidney Powell and Rudy Giuliani to spout conspiracy theories related to the manipulation of votes.
To convince a jury of “actual malice,” the standard for proving libel, Dominion needs to focus on specific examples of Fox employees admitting that fraud claims were bogus, or that they recklessly ignored the truth.
At trial Dominion will face tough limits on what it can say about the post-election riot at the U.S. Capitol that broke out on Jan. 6. The extent to which Dominion can mention specific incidences of threats it has experienced, such as messages threatening to blow up its offices, is also being limited. Judge Davis revealed in hearings this week that he has become the target of threats as well.
While the court will allow Fox to argue that the Constitution shields it from liability in some ways, Davis noted that Fox is responsible as the broadcaster of the false statements, whether they came from Sidney Powell or from a Fox news host.
Selection of the 12-person jury that will decide Fox's fate will continue Friday in Wilmington, Del. Opening statements are set for Monday.
Judge Davis barred lawyers from asking potential jurors which way they voted in the election, but they can ask if they watch Fox News or avoid it.
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