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Dominion v. Fox jury selection begins. Will Fox News superfans get picked?

The voting-technology company may be able to nix avowed Mike Lindell and Rudy Giuliani believers. But judge in the $1.6 billion case says regular Fox News watchers should not be dismissed so easily

A person walks past the Fox News Headquarters in New York, Wednesday, April. 12, 2023. (Yuki Iwamura/AP)
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WILMINGTON, Del. — Delaware residents who are fans of Mike Lindell — the MyPillow founder and an underwriter of Donald Trump’s efforts to overturn the 2020 election — are highly unlikely to land a seat on the jury for a blockbuster defamation case against Fox News.

The same goes for those with positive feelings about Rudy Giuliani or Sidney Powell, the attorneys who promoted Trump’s false claims of election fraud on the network.

The judge overseeing the case, which opened Thursday morning with jury selection, agreed this week that prospective jurors can be asked their opinions on some of the more provocative figures in Trumpworld, whose exotic and unfounded fraud claims in fall 2020 inspired an election-technology company to sue the conservative cable-news network.

Though Delaware Superior Court Judge Eric M. Davis originally set aside Friday for jury selection, he said late Thursday that the court would instead finish seating its jury Monday morning, immediately before opening arguments are set to begin.

The judge posed questions to groups of potential jurors that sought to determine whether any have conflicts of interest or explicit biases that would impact their ability to serve fairly on the trial.

The jury will include a main panel of 12 people and a separate group of 12 who will serve as alternates. Davis said at the end of the day that he’s confident enough jurors have passed through the initial process that he will be able to fill the panel on Monday, when Fox and Dominion will each have the chance to strike six jurors from the pool for the main panel, as well as several alternates.

Earlier this week, attorneys for the plaintiff, Dominion Voting Systems, acknowledged that they would surely nix any Lindell believers or Giuliani fans.

“We are concerned as a general matter that if they have a favorable opinion of Mike Lindell right now, that regardless of any instruction that your honor might give, they are going to be unable to follow that instruction,” attorney Justin Nelson told the judge during a pretrial hearing.

Davis emphasized that his goal in settling on 12 jurors and 12 alternates will be to find people who have no significant conflicts of interest and “can be fair and impartial” in deciding the case.

“I don’t want somebody on here who is biased, one way or the other, before we put the evidence on,” the judge said. “I don’t want somebody who says Mike Lindell is a great guy or Mike Lindell is a bad guy.”

Yet Davis has indicated that he does not view how prospective jurors voted in 2020 to be a relevant factor. (Native son Joe Biden won the state of Delaware by 19 points in 2020.)

And he has narrowed Dominion’s ability to gauge whether prospective jurors are Fox News superfans.

Although Dominion proposed several questions regarding how much people watch Fox or follow Fox personalities on social media, Davis has suggested that he will limit it to one catchall query about Fox consumption — designed with an opening for jurors to say they can be fair, despite regularly watching the network.

The question asked jurors, “Do you regularly watch any Fox News programs on television or any other medium, including social media, and if so, does this affect your ability to be fair and impartial?”

The judge suggested that not all Fox viewers should be seen as true believers, noting that some people “think they need to watch the other side.” In fact, Fox’s regular audience includes a large number of Democrats, although the network’s most devoted viewers generally skew right.

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“Each side is going to strike the extremes from the other side, so you’ll end up with a group in the middle,” jury consultant Roy Futterman said in an interview with The Washington Post. “The Dominion side will get rid of all the more extreme Fox viewers, the more extreme MAGA people, and the Fox lawyers will get rid of all the very, very liberal people.”

Susan G. Fillichio, a lawyer and trial consultant, predicted that Fox will embrace jurors “who admire the success of individuals such as Tucker Carlson” and who see the world as a “rough-and-tumble” place where people — and corporations — can be too sensitive in claiming to have been wronged.

A defamation lawsuit brought by Dominion Voting Systems against Fox News for $1.6 billion is headed to trial. Here’s what you need to know. (Video: Michael Cadenhead/The Washington Post)

Meanwhile, she expects that Dominion, like most plaintiffs suing for defamation, will look for jurors who feel they have been unfairly criticized in their personal or occupational lives.

“What they’re looking for is people who feel they themselves have been wronged,” she said. “Those can be good pro-plaintiff jurors.”

Although the judge is allowing Fox power-watchers to claim to be impartial, “if someone is a Tucker Carlson die-hard, Dominion’s probably striking that juror,” Fillichio said.

“If I were Dominion, I would argue pretty hard that someone who watches Fox around-the-clock would be a questionable juror,” said George Freeman, a former lawyer for the New York Times who now serves as executive director of the Media Law Resource Center.

Because of the high-profile nature of the case, the wide media exposure it has received and the length of the trial, the jury consultants who spoke to The Post said the process of picking a panel could take a while.

But, on Thursday, the judge said he has “more than are than enough jurors to start the trial on Monday.”

The judge has ordered the names of the jurors to be sealed because of concerns about tampering. “I’m concerned about interference with jurors considering the nature of the case,” he said, noting the wide reach of media coverage. “I need to make sure that the jury remains unaffected by this.”