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Judge sounds skeptical of some Fox arguments in Dominion lawsuit

Judge Eric M. Davis pushed back on assertions from both sides in Dominion’s libel lawsuit against Fox News, but he seemed particularly skeptical of the network’s claims

Dominion lawyer Stephen Shackelford, center, returns to the first hearing for the company's libel lawsuit against Fox News, at the Leonard L. Williams Justice Center in Wilmington, Del., on Tuesday. (Rachel Wisniewski for The Washington Post)
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UPDATE: Wednesday’s hearing ended without a ruling. Read here for the latest developments in the case, including the possibility that Rupert Murdoch may be forced to testify despite his “hardship” claim.

WILMINGTON, Del. — A Delaware judge threw cold water on some arguments made by a lawyer representing Fox News on Tuesday, less than a month before a trial is expected to begin in Dominion Voting System’s $1.6 billion defamation lawsuit against the network.

As both Fox and Dominion made their arguments for summary judgment and pleaded for an early victory that might preclude a jury trial, Superior Court Judge Eric M. Davis pushed back on assertions from both sides during the day-long hearing. But the judge seemed particularly skeptical of Fox’s claims that its hosts were merely voicing opinions — not asserting false facts — when they suggested to viewers that Dominion may have manufactured fraudulent votes for Joe Biden in the 2020 election.

“That sounds like a statement of fact, and we know that’s not true,” Davis said at one point during Fox’s presentation, referring to a Nov. 30, 2020, show in which Sean Hannity suggested Democrats and Republicans both agreed Dominion’s voting machines were subpar.

He seemed equally dubious when Fox argued that another host — Jeanine Pirro — did not defame Dominion when she told viewers the same month that “for the sake of our Republic, we have an obligation to get honest and truthful answers” about Dominion, which allies of President Donald Trump were claiming at the time was part of a conspiracy to steal the election.

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Internal documents revealed during the lawsuit show that Fox’s researchers had concluded such claims were meritless. “How can that be neutral?” the judge asked Fox attorney Erin E. Murphy. “That last statement makes it sound like she [Pirro] has no knowledge one way or the other that Dominion had an algorithm that flipped [votes].”

Davis also said during the hearing that Fox has “a Dobbs problem sometimes,” referencing former Fox Business Network host Lou Dobbs and his suggestions that Dominion was engaged in mass voter fraud.

Murphy argued to the judge that Fox’s hosts and guests did not originate the allegations of election fraud, while suggesting the network would not focus during the trial on trying to prove they were true. “The media doesn’t want to talk about where these allegations are coming from,” she said.

She also argued Fox does not claim to have “scot-free” immunity for comments it broadcast about Dominion. But, she said, a “reasonable viewer” would understand that Fox was simply sharing allegations by newsworthy individuals — not endorsing their accuracy. Davis asked whether she meant “a reasonable viewer of Fox” or a reasonable viewer in general.

The judge’s comments didn’t lean entirely in Dominion’s favor. “People can’t believe opinions? They can only believe facts?” Davis asked skeptically after a company lawyer argued that Fox had misled its viewers into believing false statements of fact that damaged Dominion’s business.

The judge did not issue any rulings by the end of the hearing and will take the arguments up again Wednesday. While he is not expected to throw out the case entirely, he could narrow the scope of the lawsuit. A trial is scheduled to begin April 17 and last five or six weeks.

Fox staffer’s claims of sexism, coached testimony jolt defamation case

The judge also mentioned that he has been assigned a lawsuit that is connected to the case, though he did not divulge any details. On Monday, a Fox News producer, Abby Grossberg, filed a suit in Delaware alleging that Fox lawyers coached her to make misleading statements when she was deposed in the defamation suit to help the company shift blame.

Separately on Monday, Fox filed a motion arguing that top executives Rupert Murdoch and Lachlan Murdoch, as well as corporate board member and former House speaker Paul D. Ryan, should not have to appear before a potential jury, citing “the hardships on those witnesses” and arguing that such live testimony “will add nothing other than media interest.”