Fox News Is on Trial, and So Are Falsehoods About 2020

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Fox News Is on Trial, and So Are Falsehoods About 2020
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A judge is expected to swear in the jury in a defamation trial that has little precedent in American law. Fox News will defend itself against evidence suggesting it told a story of conspiracy and fraud in the 2020 election it knew wasn’t true.

WILMINGTON, Del. — On Monday, a judge in Delaware Superior Court is expected to swear in the jury in a defamation trial that has little precedent in American law. Fox News, one of the most powerful and profitable media companies, will defend itself against extensive evidence suggesting it told its audience a story of conspiracy and fraud in the 2020 election it knew wasn’t true.

“Lying to American voters is not actually actionable,” said Andrew Weissmann, the former general counsel of the FBI who was a senior member of the special counsel team under Robert Mueller that looked into Trump’s 2016 campaign. Usually, there is great deference among media lawyers and First Amendment scholars toward the defendants in a libel case. They argue that the law is supposed to provide the media with breathing room to make mistakes, even serious ones, as long as they are not intentional.

It is extremely rare for defamation cases to reach a jury. Logan said his research shows a steady decline over the years, with an average of 27 per year in the 1980s but only three in 2017. Fox lawyers are already preparing for an appeal — a sign they are under no illusion that beating Dominion’s case will be easy. At several recent hearings in front of Judge Eric M. Davis, Fox has been represented by Erin Murphy, an appellate lawyer with experience arguing cases before the Supreme Court.

But Fox lawyers and its public relations department have been making the case that its broadcasts were protected under the First Amendment because they encompassed the kind of coverage and commentary that media outlets have a right to do on official events of intense public interest.

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