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Judge bars Dominion from mentioning Jan. 6 riot in Fox defamation trial

Delaware Judge Eric M. Davis said the trial is not centered on whether comments on Fox inspired the insurrectionists

People storm the U.S. Capitol on Jan. 6, 2021. (John Minchillo/AP)
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WILMINGTON, Del. — The judge overseeing a $1.6 billion defamation lawsuit against Fox News granted the network’s request to bar mention of the Jan. 6, 2021, insurrection during the upcoming trial.

Judge Eric M. Davis expressed concern Tuesday that the jury deciding whether Fox defamed an election-technology company by airing bogus claims that it rigged the 2020 election could be prejudiced by suggestions that such statements contributed to the riot by Donald Trump supporters at the U.S. Capitol.

“To say somehow that Fox influenced that, I’m not deciding that part,” Davis said at a pretrial hearing. “We’re not putting the January 6th attack on [trial]. That may be for another court at another time. It’s not for this one.”

But the judge said that witnesses can be asked about Fox’s strategic decisions after the insurrection. In particular, he mentioned network co-founder Rupert Murdoch’s acknowledgment in an email that Fox was “pivoting as far as possible” after Jan. 6. Davis suggested that lawyers for plaintiff Dominion Voting Systems could fairly ask Murdoch about that.

He also said it would be acceptable for Dominion’s lawyers to talk in court about the increased personal security costs the company incurred after the insurrection.

RELATED: Judge chides Fox News over Dominion claim of ‘missing’ Murdoch documents

Justin Nelson, a lawyer for Dominion, told the judge that his side did not plan to argue that Fox caused Jan. 6, but said that Jan. 6 “does come up in ways relevant to our evidentiary presentation.” But Davis insisted that Dominion should largely “stay far away from it.”

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Fox News agreed to pay $787.5 million to Dominion Voting Systems, settling a defamation lawsuit that made headlines, particularly with the release of private communications within the cable-news company after the 2020 election. Here’s a cheat sheet.
Why Dominion sued Fox
Dominion argues that Fox unfairly smeared it when the network aired bogus and debunked claims from allies of Donald Trump that its voting machines were supposedly rigged to “flip” votes to Joe Biden. The lawsuit alleges that Fox executives knew such claims were false but allowed them to be broadcast anyway.
What the settlement means
We don’t know the full terms of the settlement, but it’s the largest publicly disclosed defamation settlement in American history. As part of the settlement, Fox says it won’t be required to apologize on-air. Because an agreement has been reached, the trial will not go forward, sparing Fox more spectacle.
What happened in the depositions
Dominion deposed several prominent Fox executives and personalities including Jeanine Pirro, Tucker Carlson and Sean Hannity. In his deposition, Rupert Murdoch, executive chairman of parent company News Corp, said of election misinformation “I would have liked us to be stronger in denouncing it, in hindsight.”
What Fox’s internal emails and texts say
Some show Fox executives and hosts, including Carlson, voicing strong doubts about claims from Trump’s lawyers; some of those same people, though, expressed fear their audience would reject pushback of false claims and scolded Fox journalists who reported information that questioned the claims. Fox claims many exchanges have been taken out of context.


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The judge also barred Fox from arguing to the jury that there was news value in broadcasting the claims of election fraud made by Trump lawyers in fall 2020. If such a suggestion is made in court, “I would have to tell the jury that newsworthiness is not a defense to defamation,” Davis said.

But he said it is acceptable for witnesses to “give their opinion” on why they brought those lawyers, Sidney Powell and Rudy Giuliani, on their shows, and to mention “newsworthiness” as a factor in the booking decisions.

Fox has suggested in its defense arguments that there was natural news value in reporting on the claims being made by a sitting president and his lawyers, whether they were true or not. But Powell had only a loose affiliation with Trump before she first accused Dominion of election fraud on a Fox program; she was later disavowed by his campaign, and her name did not appear on any of Trump’s lawsuits challenging the election results.

Yet the judge denied Dominion’s request that Fox only be allowed to refer to Powell at trial as Trump’s attorney during the eight days before the Trump legal team cut ties with her.

“I don’t know how I can separate which time frame she was [Trump’s lawyer],” he said.