A Delaware judge on Tuesday lectured attorneys defending Fox News in a $1.6 billion defamation lawsuit after they revealed that Rupert Murdoch is not only the chairman at Fox Corp., but also a corporate officer at its subsidiary, Fox News.
Delaware Superior Court Judge Eric M. Davis said Fox lawyers previously had "represented to him more than once" that Murdoch was not an officer for the subsidiary cable network. Such information "could have" led him to make different rulings earlier on in the case, he said.
"I'm not very happy right now," Davis said, in his often-understated manner.
The statement was one of a flurry of eye-opening exchanges between Davis and attorneys at the Tuesday hearing, during which the court set rules for what is certain to be a landmark defamation trial, scheduled for later this month.
It also was one that Fox has since pushed back against.
In a statement released Tuesday evening, a spokesperson for the network said "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."
A Fox proxy statement filed in 2020 does indeed list Murdoch as serving as the "executive chairman of Fox News Network, LLC."
Nevertheless, the judge's comments Tuesday mark the second time in weeks that questions arose about the credibility of Fox attorneys. Last month, former Fox producer Abby Grossberg filed a lawsuit against the network alleging those attorneys "coerced, intimidated, and misinformed" her before she sat for questioning by a Dominion attorney in September (Fox has said Grossberg's allegations in connection with the Dominion case are baseless).
Voting machine software company Dominion Voting Systems is suing Fox News, and its parent Fox Corp, on claims the network repeatedly aired baseless statements about voter fraud during the wake of the 2020 presidential election. Those included lies about Dominion's voting software switching votes from then-President Donald Trump to Democratic nominee Joe Biden – statements that were also pushed by Trump, his inner circle and his supporters. They often did so on Fox News.
For more than a year, Fox News has argued that its parent company Fox Corp. — and the chairman, Murdoch — had little to do with editorial decisions at the cable network.
As such, Fox attorneys had sought to keep any potential liability against the cable network separate from that against the parent company. They also resisted requests from Dominion during the early stages of the lawsuit for information about the Murdoch family because, as Fox argued, "they were only affiliated with Fox Corporation," Dominion attorney Justin Nelson said on Tuesday.
As a result, Dominion's attorneys are "missing a whole bunch of Rupert Murdoch documents that we otherwise would be entitled to," Nelson claimed.
Nelson's comments appeared to have prompted Davis to excoriate Fox attorneys and even pose questions about their credibility. "I don't know why this is such a difficult thing," he said, referring to apparent confusion over the identities of Fox News' officers.
In response, one Fox attorney called Murdoch's position with the network "honorific," and said the role had been disclosed during a previous deposition. But Davis was not pacified. He said an officer of a company cannot "escape responsibility" by saying they didn't have any tasks.
Beyond the questions of Rupert Murdoch's roles, Tuesday's hearing also featured a testy exchange between Davis and attorneys that touched on a key Fox defense — that the network cannot be sued for defamation because it had a right to air newsworthy allegations made by people close to the president of the United States.
Davis made clear his opinion that the cable network could be held liable for the billion-dollar claim even though its hosts were often not those who uttered the defamatory statements.
It is "irrelevant" whether the person making a false claim was a Fox employee or a Fox guest, Davis said, arguing that the key question is whether Fox, as a company, published the information maliciously.
"It's a publication issue," he said. "It's not a 'who said it' issue."
Speaking to the remainder of Fox's argument, Davis warned attorneys to "stay away from the word 'newsworthy'" in opening statements, because he had previously ruled it is not a legal defense against defamation. Still, he said, he would allow Fox hosts testifying during trial to state whether they personally believed false claims against Dominion were newsworthy.
That prompted the first instance of pushback from attorneys for Dominion on Tuesday, who argued that a jury would be prejudiced by such testimony from a Fox host. Davis shot back, arguing there is a distinction between what a Fox host believed to be newsworthy, and what Fox lawyers argued could absolve the company from defamation.
Davis further stated Dominion would have an opportunity to effectively pick apart a Fox host's statements if they asserted under oath that election lies were newsworthy. In a response that neared a roleplay, Davis suggested various questions that Dominion attorneys could ask during a cross-examination, including why Fox hosts who believed election lies to be newsworthy didn't also air interviews with then-President elect Joe Biden.
"I could have a lot of fun with this case," Davis said.
Later during Tuesday's hearing, Dominion attorneys also pushed back against a previous decision from the court that barred them from introducing information at trial about the Jan. 6 riots at the U.S. Capitol, or about details of threats made against Dominion employees.
Davis said the actions made by individuals with no relationship to Fox – or what he called "third parties' looniness" – could unfairly prejudice the jury against Fox. While jurors could hear about the mere existence of threats, Dominion attorneys could not discuss the fine details of them, the judge said.
In response, Dominion attorney Megan Meier argued that it was Fox broadcasts that directly motivated individuals to make threats against employees at the voting machine company.
She said Fox effectively yelled fire in a crowded theater — quoting an often-cited limit to free speech — but Fox "doesn't want to hear about the stampede that followed."
Adding to the criticism, Nelson argued Dominion should be allowed to question Fox employees about the Capitol riots as they are relevant to evidentiary issues, particularly why Fox chose to "pivot" its support away from Trump following the event.
Davis in response again suggested a question that Dominion could ask in its place. He said Dominion could inquire why Fox executives chose to pull back support from Trump. If their answer brought up Jan. 6, Dominion could pursue the topic, the judge said.
To cap the exchange, Davis stressed that he must strike a "balance" between giving attorneys leeway and ensuring jurors would rule only on the claims in the case — and not the controversial issues that linger just beyond it.
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