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 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 by supporters of then-President Donald Trump.
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 issued 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.
Threats against the judge
The judge 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 the threats and harassment that its employees have faced after the 2020 election, which one Dominion lawyer said has instilled “terror” among its employees and has “devastated” the company’s ability to recruit and retain staff.
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. The judge did not disclose any details about the threats against him, or whether any of them were deemed credible.
Flurry of pretrial rulings
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. 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.
Judge scolds Fox for obfuscating Murdoch’s role
In an unexpected twist near the end of the daylong hearing, the judge scolded Fox’s lawyers after Dominion revealed that network had serially obfuscated Rupert Murdoch’s official role at the company.
Murdoch is the chairman of Fox Corporation, the parent company of Fox News. The network’s lawyers have maintained for years that he had no official title at Fox News. But over the weekend, they conceded that he is also an officer at Fox News.
This distinction – albeit technical – could have significant legal implications. Dominion claimed this blocked them from getting Murdoch-related documents in discovery. And by further tying Murdoch to Fox News, and not just to its parent company, Dominion may have more paths to prove actual malice.
“You have a credibility problem,” Davis told Fox’s lawyers, adding, “I don’t know if this is something that we have to turn the battleship around,” with the trial looming, but “I need to feel comfortable that when you represent something with me that it’s the truth – and that was not true.”
A Fox lawyer pushed back by saying Murdoch’s role at Fox News was just an “honorific title” and that he wasn’t directly involved with any of the allegedly defamatory broadcasts after the 2020 election.
“I hope you’re not being cagey with me,” Davis continued. “…I don’t know why this is such a difficult thing… To say you don’t know who your officers are, seems extremely bizarre to me.”
As the hearing wrapped, Davis brought up the subject again, clearly frustrated by the revelation.
“I’m not mad at you, I’m mad at the situation I’m in,” Davis told the Fox lawyers. “…It was represented to me on multiple occasions that he’s not an officer at Fox News.”
In a statement late Tuesday night, a Fox spokesperson pushed back on Dominion’s claims that it withheld information about Murdoch’s role.
“Rupert Murdoch has been listed as executive chairman of Fox News in our SEC filings since 2019 and this filing was referenced by Dominion’s own attorney during his deposition,” the spokesperson said.
