Jury selection began Thursday in Dominion Voting Systems’ $1.6 billion defamation trial against Fox News over the right-wing network’s promotion of debunked conspiracy theories about the 2020 presidential election.
Almost the entire process took place outside of public view, with Delaware Superior Court Judge Eric Davis privately questioning prospective jurors. Davis said Thursday afternoon that he made good progress, and that there were “more than enough jurors” to start the trial as planned on Monday, when opening statements are expected.
Jury selection is done for the week, and there are no in-court proceedings scheduled for Friday.
Roughly 300 potential jurors were summoned to the Delaware Superior Court and will eventually be whittled down to a panel of 12 jurors and 12 alternates. The high-stakes trial — which will put a spotlight on Fox’s 2020 election denialism and the role of disinformation in American politics — is expected to last about six weeks.
Potential jurors were peppered with questions about their news consumption habits, including whether they watch Fox News. But Judge Davis narrowed the scope of the questioning — he didn’t want jurors to be asked if they believe the 2020 election was legitimate, or if they had any connection to the January 6 insurrection.
The case revolves around Fox’s decision, after Donald Trump’s loss in the 2020 election, to allow haywire conspiracy theories about Dominion onto its airwaves. The allegations, levied by Fox guests and embraced by some Fox hosts, falsely claimed Dominion and its voting software flipped millions of ballots away from Trump, to steal the election.
Dominion has argued that Fox destroyed its reputation as a trusted voting technology company by repeatedly amplifying these false claims. Emails and texts unearthed during the litigation have shown that many Fox hosts, producers, and top executives privately believed the claims on their airwaves were preposterous and untrue.
High bar, high stakes
In recent weeks, Dominion’s case has picked up steam, though it’s still a high bar to prove defamation. The company will need to convince the jury that people at Fox acted with “actual malice” — they knew what was being said on-air was false but broadcast it anyway, or they acted with such a reckless disregard for the truth that they should be held liable.
The judge has already rejected several First Amendment defenses that Fox hoped to invoke, and he further constrained Fox in a flurry of pretrial rulings this week, stopping the right-wing network from trying to argue that the allegedly defamatory statements were “newsworthy” and thus deserved coverage.
An in an 11th-hour twist, the judge sanctioned Fox on Wednesday for withholding evidence from Dominion, and said he’d assign an outside attorney to investigate whether Fox misled the court and deliberately hid any additional material from Dominion.
Fox News says it didn’t defame Dominion and maintains that it is still “proud” of its 2020 election coverage. The right-wing network also denied that it withheld any evidence from Dominion.
“Dominion’s lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights,” a Fox spokesperson said in a statement. “While Dominion has pushed irrelevant and misleading information to generate headlines, Fox News remains steadfast in protecting the rights of a free press, given a verdict for Dominion and its private equity owners would have grave consequences for the entire journalism profession.”