By Helen Coster and Jack Queen
(Reuters) - One of the most closely watched U.S. defamation cases in decades is set to begin on Thursday as a Delaware court picks a jury to decide whether Fox News should pay Dominion Voting Systems $1.6 billion for spreading election-rigging falsehoods.
A critical task for jurors over the five-week trial will be deciding who was responsible for the cable network's decision to broadcast the claims despite internal doubts about their veracity. Dominion asserts that Fox's top brass approved of the coverage, but the network says the evidence of high-level involvement is threadbare.
Last week, Delaware Superior Court Judge Eric Davis said he would not block Dominion from calling Rupert Murdoch, chairman of Fox News parent company Fox Corp, to testify in-person about his involvement in the coverage, which Davis has ruled was false and defamatory.
"The more complicit the whole organization is in perpetuating these known falsehoods, the more likely a jury would be to return a big dollar figure," said Mary-Rose Papandrea, a constitutional law professor at the UNC School of Law.
Dominion alleges that Fox destroyed its business by knowingly airing false claims that its ballot counting machines were used to flip the results of the 2020 U.S. presidential election against former President Donald Trump, a Republican who lost to Democrat Joe Biden. The trial has been widely viewed as a test of whether Fox's coverage crossed the line between ethical journalism and the heedless pursuit of ratings, as Dominion alleges and Fox denies.
The jury pool will be drawn from New Castle County, Delaware, where Democrats outnumber Republicans more than two-to-one, according to the state's Department of Elections. Fox is home to many conservative commentators who pulled for Trump.
Opening arguments are set to begin April 17. They will come weeks after Davis dealt Fox a setback by ruling that claims the network aired about Dominion's complicity in a nonexistent plot to rig the election against Trump are not protected by the First Amendment of the U.S. Constitution, which forms the bedrock of free speech law.
But Davis left it up for jurors to decide whether Fox knowingly spread false information or acted with reckless disregard for the truth - the legal standard of actual malice that Dominion must meet to prevail. The question could hinge upon troves of internal Fox communications and testimony by Murdoch, his son Lachlan, and a parade of Fox higher-ups and hosts who are expected to testify.
The defamatory statements aired on shows including "Sunday Morning Futures," "Lou Dobbs Tonight" and "Justice with Judge Jeanine." Dominion alleges that Fox personnel from the newsroom to the boardroom knew the statements were false but continued to air them to avoid losing viewers to far-right outlets. Dominion also cites evidence that some hosts and producers thought the guests spreading them, including former Trump attorneys Rudy Giuliani and Sidney Powell, were not credible.
Fox has argued Dominion falls short of pinning actual malice on the individuals who were responsible for the defamatory statements because it cannot prove any "superior officer" at the network or its parent company "ordered, participated in, or ratified" wrongdoing. The network says scattered doubts about the claims among certain individuals cannot be attributed to the organization as a whole.
"I think (Fox is) trying to argue that the employees themselves did not have that necessary mental state," said UNC's Papandrea. "But it's tricky when the organization itself has relevant information that would cast doubt on the veracity of the statements about Dominion."