Fox News attorneys claim in court executives had no direct participation in post-election broadcasts

Attorneys representing Fox News and its corporate parent on Wednesday argued that the company’s executives had no direct participation in the post-election broadcasts in which an array of former President Donald Trump’s supporters leveled false claims about election fraud centered on the company that manufactured voting machines.

Combating what Fox characterized as Dominion Voting Systems use of the “royal they” to describe the chain of command between the corporation’s executives, including its Chairman Rupert Murdoch, and the news network, Fox attorney Erin Murphy said that in order to prove defamation, “you have to show that they actually, directly participated.”

The arguments came as a Delaware Superior Court judge was asked by each of the parties in the $1.6 billion defamation suit brought by Dominion against Fox News and its parent company, Fox Corporation, to issue a judgment in their respective favors and avert what is expected to be a lengthy jury trial next month.

Judge Eric M. Davis did not indicate how he plans to rule, but noted he was taking the plaintiffs’ requests seriously because “the parties demonstrated to me this is a very difficult case.” He informed those in the courtroom that he’d take the matter under advisement and would either submit his decision in writing or by formal presentation, and then proceeded to discuss logistics surrounding a possible trial, which is scheduled to begin on April 17.

Dominion, a Denver-based electronic voting hardware and software company, sued both Fox News and its parent company Fox Corporation for defamation in 2021. Dominion argues that in the wake of the 2020 election, Fox News employees touted false claims that Dominion changed votes and gave guests a platform to make inaccurate and defamatory statements, even though they knew the claims were false, and that they did so to avoid alienating their conservative audience.

In a statement after Wednesday’s hearing, Fox accused Dominion of having presented “cherry-picked quotes without context.” “This case is ultimately about the First Amendment protections of the media’s absolute need to cover the news,” Fox said. 

In response to the arguments by the Dominion team on Tuesday, Murphy disputed allegations that Fox’s corporate parents acted with actual malice, meaning they knew the claims were false or acted with reckless disregard to whether they were false or not. Murphy argued that corporate executives, such as Murdoch and his son Lachlan Murdoch, were not involved in publishing the allegations. 

On that point, Murphy said just because executives may have been aware of a guest appearing on a given Fox News show, that does not equate to their knowing what would be said about Dominion. 

In order for Dominion to prove its defamation case, “you have to bring it home to the person that is directly involved with the publication,” Murphy said, which in this case she claims is not the Fox Corporation. 

Dominion lawyer Justin Nelson disagreed, pointing to evidence found during discovery that he said indicated that Murdoch and other executives made the decision to let the statements go to air, “to appeal to the viewers.”

“It was a strategic decision that rose to the highest levels of the company,” Nelson said. “At the time they knew they were saying crazy things.” 

Murphy maintained that Fox News was merely covering the newsworthy statements made by the then-president and his legal team, noting that in the weeks following the 2020 election, Fox News covered several allegations about election fraud, not just those claims directed toward Dominion. 

In rebuttal, the Dominion team continued to argue that Fox calling the statements in question, “allegations,” was akin to  “verbal confetti” or “fairy dust” and does not shield the company from culpability by changing those perceived facts into opinions. “Those things either happened or they did not,” Dominion attorney Rodney Smolla said. 

“It is not our position that just because it’s a guest talking, we’re off the hook,” Murphy said in response. “All we have ever said is you have to look at context and look at what is being discussed.”

The parties returned to the courthouse in Wilmington on Wednesday to argue their cases for summary judgment after a hearing on Tuesday went long. Davis made clear he wanted the legal teams from each side to take all the time they needed to present their arguments, and asked them to “educate me,” explaining that he had not “pre-decided” how he would rule.

On Tuesday, Dominion argued that material it gathered in discovery showed that there were “deliberate” decisions by those responsible for the broadcasts — all the way up the chain of command — to let the false claims be out there. It was “to release the Kraken,” Dominion attorney Rodney Smolla said, echoing one-time Trump attorney Sidney Powell’s unfulfilled promise of proof that the election had been stolen from Trump. 

On Monday, a Fox News producer who worked for hosts Maria Bartiromo and Tucker Carlson filed a pair of lawsuits against the network, alleging its legal team “coerced” her into giving misleading testimony in the defamation case and accused the company of fostering a “toxic” work environment.

The producer, Abby Grossberg, previously worked as a producer for CBS News.

Davis said Grossberg submitted an errata sheet to the court on Monday night, which informed the court of corrections she would like to make to her deposition transcript, which recorded her answers to questions now at the center of her lawsuits. He indicated that Fox had attempted to “claw back” her errata submission citing privilege grounds which he said seemed “counter intuitive,” but is allowing their legal team to submit a letter detailing their reasoning. 

In a statement, Fox News said: “FOX News Media engaged an independent outside counsel to immediately investigate the concerns raised by Ms. Grossberg, which were made following a critical performance review. Her allegations in connection with the Dominion case are baseless. We will vigorously defend Fox against all of her claims and are confident we will prevail.”

Outside the courthouse, neither legal team responded to questions about a possible settlement. If the case does make it to trial next month, Davis calculated from the bench that it would take 25 business days, or 137.5 hours in court, which includes time for lunch and other breaks. Davis also took the opportunity before the hearing adjourned to compliment the attorneys, saying in light of the hours spent arguing these motions that they were well educated on the issues adding, “these clients are very well represented.”