Judge in Fox vs. Dominion Case Challenges Network Argument That Top Execs ‘Didn’t Have the Power’ to Stop Election Lies

“Is Fox’s position that executives didn’t have the power to stop Lou Dobbs?” Delaware Judge Eric Davis asked network lawyers

Lachlan Murdoch
Drew Angerer/Getty Images

Fox News continued to preview its multi-pronged defense against Dominion Voting Systems’ $1.6 billion defamation lawsuit on Wednesday, arguing before a Delaware judge that top Fox executives, including Rupert and Lachlan Murdoch, can’t be held liable for false claims about the 2020 election because they weren’t directly involved.

Fox attorney Erin Murphy began Fox’s defense Tuesday, going incident-by-incident through the 20 examples that Dominion’s case is centered upon. After a while, Judge Eric Davis noted that most of them came from “Lou Dobbs Tonight” – saying Fox appears to have a “Lou Dobbs problem.” Network attorneys also continued to underscore that real, still-viable concerns about Dominion machines exist.

But on Wednesday, Murphy noted that a defamation claim needs to be brought “home to someone who’s directly involved” in decisions about what to publish or air. Davis – who has cautioned everyone not to make too much of his early inquiries – challenged that idea forthrightly:

“Is Fox’s position that executives didn’t have the power to stop Lou Dobbs from doing something like that?” Davis asked.

Dominion lawyer Justin Nelson seized upon the exchange Tuesday, highlighting an email from Rupert Murdoch expressing concern about the network’s positioning on the election. Nelson also pulled up receipts from producers and other mid-level shot-callers turning the other way in the face of claims they did not believe were true.

Most of Fox’s points of argument were covered Tuesday, as Murphy argued that any “reasonable viewer” would discern that Fox was presenting allegations from Trump and his supporters. On Wednesday, Dominion lawyers began to take that apart, saying that “when you publish another’s statement you adopt it as your own,” reflecting First Amendment precedent established by New York Times vs. Sullivan in the early 1960s.

Dominion is asking for $1.6 billion in damages for what it says are defamatory statements about its voting machines in multiple reports, guest segments and host commentary. Ahead of a scheduled April 17 trial, both sides are asking Davis to rule summarily in their favor; the judge is not expected to rule on those motions this week, but could decide on whether certain redacted material in evidentiary depositions should be revealed.