Dominion Voting Systems won a significant ruling against Fox News Network on Friday, with a judge finding that Fox News aired false statements about Dominion related to the 2020 presidential election and must face a jury trial in the defamation lawsuit.

“While the Court must view the record in the light most favorable to Fox, the record does not show a genuine issue of material fact as to falsity,” wrote Judge Eric Davis in a Delaware Superior Court ruling on summary judgment. Dominion provided “extensive proof” to meet its burden of showing that Fox aired false statements and Fox wasn’t able to refute those accusations, he added.

Davis used a mix of italics, capital letters, and bolded text to emphasize his conclusion that Fox published false statements:

The evidence developed in this civil proceeding demonstrates that [it] is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true. Therefore, the Court will grant summary judgment in favor of Dominion on the element of falsity.

Davis found that the Fox News Network statements are defamatory per se because they “claimed that Dominion committed election fraud; manipulated vote counts through its software and algorithms; is founded in Venezuela to rig elections for dictator Hugo Chavez; and paid kickbacks to government officials who used the machines in the Election… The Statements also seem to charge Dominion with the serious crime of election fraud. Accusations of criminal activity, even in the form of opinion, are not constitutionally protected.”

Davis scheduled a trial to begin on April 17. Although Davis agreed that Fox published false statements, he did not grant Dominion’s request for summary judgment on whether defendants Fox News Network and Fox Corporation acted with actual malice. That requires proving a defendant published false information about a plaintiff “with knowledge that it was false or with reckless disregard of whether it was false or not,” he noted.

If a jury decides that Fox acted with actual malice, jurors would have to calculate damages to be awarded to Dominion, which has asked for $1.6 billion. Dominion separately sued Newsmax and One America News Network. Voting machine maker Smartmatic also sued all three networks.

Fox takes “nuanced approach to falsity”

Dominion contended that Fox “intentionally provided a platform for guests that FNN’s [Fox News Network’s] hosts knew would make false and defamatory statements of fact on the air”; that Fox affirmed, endorsed, repeated, and agreed with those guests’ statements; and “republished those defamatory and false statements of fact on the air, FNN’s websites, FNN’s social media accounts, and FNN’s other digital platforms and subscription services,” Davis noted.

Davis was not impressed by Fox’s argument that it was merely reporting on former President Trump’s baseless allegations of election fraud. “Fox dedicates little to its argument on falsity,” Davis wrote. “It claims that ‘[t]he question is whether the press reported the “true” fact that the President made those allegations.'”

Fox’s “nuanced approach to falsity,” Davis wrote, “would have the Court test whether specific points stated by the FNN hosts are true. For example, Fox argues that if a FNN host notes that the next guest is Ms. [Sidney] Powell, that Ms. Powell is an attorney for former President Trump and that Ms. Powell will be stating the position of the former President, then all the statements are true and there can be no defamation.”

Davis also called it “oxymoronic” for Fox to describe the challenged statements as “opinions” while simultaneously “asserting the Statements are newsworthy allegations and/or substantially accurate reports of official proceedings.”

https://arstechnica.com/?p=1928803