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.
“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.
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.”
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.