Leftist Judge Is Dismantling Fox News
Blocks Jury from Even Considering Election-Fraud Claims
Today, a fundamentally unfair trial began in Delaware against Fox News and its parent corporation that may genuinely hasten the end of Fox News or, at a minimum, politically alter its news coverage.
Following the 2020 elections, supporters of President Trump accused Dominion Voting Systems, a private voting-machine manufacturer, of misconduct involving its machines and its maintenance and supervision of them. In 2021, Dominion filed a series of defamation lawsuits against both Fox News and Fox Corporation for airing claims by interviewees regarding Dominion and its practices during coverage of the 2020 election. Dominion seeks $1.6 billion in damages, which presumably includes potential punitive damages under Delaware law.
Fox contends the network did its job by reporting accurately the claims made by the sitting president, his esteemed lawyers and others in his service. The transcripts of key interviews by Fox News hosts showed direct, persistent questioning of Dominion’s critics rather than lap-dog treatment that purveyors of the Mueller investigation and Russia hoax, for example, received on MSNBC and other comparable media.
Still, this is a case against a conservative media leviathan that the Left wants to take down—so the standards have changed. Indeed, things are not going well for Fox and few on the Right are scrutinizing the case. Fox News is exactly where the Left wants it. The conservative giant is wobbling, struggling to fight off a lawsuit backed by the official establishment narrative of the 2020 elections and an unabashedly hostile judge eager to bring this titan to heel. If Fox goes down, the Right will lose by far its greatest media champion.
A Towering Example of Two-Tiered Justice
Walking point in this onslaught is a leftist trial judge who bristles with undisguised contempt for Fox News and its viewers. Delaware Superior Court Judge Eric Davis obviously knows he can get away with such animus, which reflects the views of the lawyer class. “I could have a lot of fun with this case,” Davis snorted at one point during a discussion of Dominion’s opportunity to cross-examine Fox witnesses.
Judge Davis relishes berating Fox and its personnel in open court. Recently Davis mocked Fox Business Channel anchor Maria Bartiromo in a colloquy with a Fox News attorney. Ignoring Fox’s responses, Judge Davis repeatedly and summarily has taken the side of Dominion on discovery issues, scolding Fox’s lawyers for allegedly failing to fully disclose the role of Fox Corporation Chairman Rupert Murdoch and evidence from an ex-Fox producer who had just filed her own lawsuit. “You have a credibility problem,” Davis told Fox’s lawyers as he sanctioned Fox News.
Setting up Fox News for a massive legal takedown is a trial judge who bristles with undisguised contempt for Fox News and its viewers.
At first, Fox gamely responded by stating, through a spokesperson, that the judge basically was lying. “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 noted. The alleged late disclosures from the ex-producer’s recent lawsuit were unknown to Fox, and they provided them “when we first learned.” On the eve of trial Fox backed down, issuing an apology to try to mollify the judge (good luck with that).
The sanctions against Fox laid the foundation for appointing a special master in the case. That special master would be an agent of the court who has investigatory and supervisory powers like that of a judge. Imagine a version of special counsel Jack Smith tacked on to the litigation and you get the idea.
Judge Davis has shaped the battlefield in important ways with his rulings on what evidence the jury can consider. For example, Davis barred Fox from defending itself at trial by noting the many times in its broadcasts that it fact-checked the Trump campaign’s claims.
The New Tyranny of Summary Judgment
Yet by far the most tyrannical and alarming of Davis’ actions involve summary judgment. Davis granted Dominion summary judgment on the falsity of statements made against Dominion. As a result, Fox cannot even argue to the jury that some of the statements made about Dominion by Trump attorneys Rudy Giuliani and Sidney Powell were accurate. The judge has declared, as a matter of law, that all of these statements were false, so the jury won’t be allowed even to consider whether any of the claims by Trump’s representatives were true. The jury will be instructed they are all false.
So there might be no ambiguity on the matter, and as if to underscore his bias, Davis wrote (actual italics, boldness and capitalization are left intact): “The evidence developed in this civil proceeding demonstrates that it is CRYSTAL clear that none of the statements related to Dominion about the 2020 election are true.”
By rule, a judge can grant summary judgment to a party only when there is no “genuine issue of material fact” and the party is entitled to judgment as a matter of law. This is a very high bar. Still, as the courts have become more politicized, summary judgment has been used by leftist or self-interested judges to deny the right to a jury trial or outright dismiss cases they want to go away.
The sweeping abuse of power taking place in Delaware doesn’t merely chip away at the rule of law—it takes a sledgehammer to it. In a defamation case, deciding the truth or falsity of claims made about a party is a classic jury question. For centuries, courts have allowed juries to decide such matters. Otherwise, the right to a jury trial becomes meaningless.
In summarily concluding there was no point in even letting the jury decide whether Trump’s counsel made legitimate points, Davis hit all the standard establishment talking points. He stated, “State audits and recounts were conducted for contested areas”—as if that settled the matter. His analysis ignored the bitter controversies in Arizona, for example, where both the Arizona legislature and Arizona Attorney General launched investigations out of stated concern (both encountered vicious leftist lawfare impeding their efforts, lawfare that is ongoing). He concluded dogmatically, “Fox failed to meet its burden.”
The sweeping abuse of power taking place against Fox News doesn’t merely chip away at the rule of law—it takes a sledgehammer to it. We risk effectively losing the right to a jury trial.
Likewise, the court blew past the fair-report and neutral-report privileges invoked by Fox. These privileges allow news organizations to report what public officials claim about current events without fully fact-checking them. Imagine, for example, if the Washington Post could be sued for covering the now-discredited Russiagate or allegations by U.S. intelligence leaders in the 2020 campaign that the New York Post had published Russian disinformation by reporting on Hunter Biden’s laptop. Judge Davis says no such privileges apply to Fox. Elsewhere in his opinion he employs such phrases as “conspiracy theories” and other charged language to diminish genuine concerns by roughly half of the U.S. voting population, based on polls, about the integrity of the 2020 elections.
The growing blood in the water is attracting still more lawsuits against Fox. Smartmatic, another company that makes and runs electronic voting systems, is also suing Fox and demanding even more than Dominion, $2.7 billion. While Fox News is prosperous, it is not Google or Apple. There is a limit to the torpedoes it can absorb. At some point Fox may be forced, against the interests of its customers, to alter fundamentally what it does. While Fox Corporation has a market cap of just over $17 billion, its annual profits are $1.4 billion. At some point Murdoch and his sons may decide Fox News needs to adjust its focus to stay out of the line of fire. Fox Corp. is a huge elephant to take down, but Judge Davis is holding an elephant gun and has herded the ponderous prey into the firing range.
The Effective End of Jury Trials?
The Fox News lawsuit is the latest sign that basic reforms are needed to deal with a legal system increasingly slanted and hostile to conservatives and patriots. Congress and the states may need to take up summary-judgment reform to save our right to a trial by jury. At a minimum, companies must cease incorporating in Delaware. The state’s courts gained jurisdiction because both Dominion and Fox News Network are Delaware corporations. Traditionally, Delaware has been a default location for incorporating. Consistent with the Fortress Strategy I’ve outlined, companies should incorporate in red states, where they can pay lower filing fees and encounter less judicial bias and political danger.
There is a small measure of justice, or at least comeuppance, in this situation. For years Fox News has ignored the brewing and foreseeable catastrophe in American law that is now engulfing it and so many others on the Right. Focusing on short-term segments instead of longer analysis, Fox has invited a parade of establishment lawyers and commentators, such as Judge Andrew Napolitano, to chirp about their cases and pontificate about the law while pretending the walls weren’t collapsing on conservatives in America’s courtrooms. Now matters have come to a head. President Trump is besieged by these accelerating forces while Fox is simultaneously experiencing the full brunt of the systemic challenges the channel chose to ignore. This is small comfort for the many conservatives and patriots whose main source of news is facing a dark hour.
From the seminal case of New York Times v. Sullivan to today, the courts have prided themselves for upholding the First Amendment and protecting news publishers from the “chilling effect” of defamation suits. It turns out there’s an exception to these rules as well, an exception familiar to those seeing double standards erected across the country to benefit the Left and destroy the Right.
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