Fox Corp. executives Rupert Murdoch and Lachlan Murdoch could be forced to testify in the defamation suit against Fox News and Fox Corp, a Delaware judge said Wedneday.
Delaware Superior Court Judge Eric Davis said in a pretrial hearing that lawyers for Dominion Voting Systems would need to issue trial subpoenas to force their testimony.
"They are relevant to the case," Davis said. "If Dominion wants to bring them live, they need to issue a trial subpoena, and I would not quash it. Both parties have made these witnesses very relevant."
Dominion's attorneys indicated in a letter to the court that they want the Murdochs to testify, as well as former House Speaker Paul Ryan, R-Wis., who sits on the board of Fox Corp.; and Viet Dinh, a Fox Corp. executive.
Unless Dominion proves that Rupert Murdoch was instrumental in influencing Fox's coverage, his testimony wouldn't necessarily "add that much to the case," Lyrissa Lidsky, a constitutional law professor at the University of Florida, told Salon.
"But one of the interesting things here, that Dominion has been doing, is fighting its case in the court of public opinion and so the Murdoch piece of the case is part of them litigating the case in the court of public opinion," Lidsky said.
Lawyers for Fox News and Fox Corp. have argued that Rupert Murdoch and other executives shouldn't have to testify in court as they have already provided filmed depositions and their live appearances would "add nothing other than media interest," The New York Times reported.
But Dominion remains eager to have the Murdochs testify because their involvement in Fox News' election coverage is a key element of their case against the company.
"Live testimony is preferred to deposition testimony at trial," said former U.S. Attorney Barb McQuade, a law professor at the University of Michigan. "Some deposition testimony is barred from a trial under the hearsay rule, though I think his most damaging statements would be admissible as admissions. Still, transcript snippets can be framed as being taken out of context. Hearing it from the horse's mouth is far more compelling."
On Tuesday, Fox's lawyers said in a letter to Judge Davis that the lawyers had agreed to make some of the high-profile Fox employees available to testify in the case, including Tucker Carlson, Sean Hannity, Jeanine Pirro and Bret Baier, as well as the former host Lou Dobbs. They also said the chief executive of Fox News Suzanne Scott would be available to appear for the trial.
Dominion in its $1.6 billion defamation lawsuit alleges the network's hosts and executives damaged its reputation by airing false claims after the 2020 presidential election suggesting the election software company supposedly changed or deleted votes to help President Joe Biden get elected.
Pre-trial discovery in the litigation has already offered evidence revealing that Fox's on-air personalities and top executives engaged in an internal critique of the election lies that former President Donald Trump promoted, but continued to air his conspiracy theories anyway.
"The reason that defamation cases are difficult is that public figures must prove not only that a statement was false, but that the publisher knew it was false or acted with reckless disregard as to its falsity," McQuade said. "Based on reporting, it appears that Dominion has evidence that executives and hosts at Fox knew that claims about Dominion machines being used to commit fraud were in fact false and aired them anyway."
Normally, a defamation suit is about one news story, pointed out Lidsky. But this case is about multiple news stories including several journalists and involving leadership all the way to the "very top of the news organization".
"[Dominion is] endeavoring to show that both, individual reporters within Fox and the entire news organization, was out there selling a false narrative about Dominion, knowing that it was false or recklessly disregarding that it was false," she added.
Fox News has argued that they were merely reporting on the allegations, which is protected by the First Amendment.
"This case is and always has been about the First Amendment protections of the media's absolute right to cover the news. FOX will continue to fiercely advocate for the rights of free speech and a free press as we move into the next phase of these proceedings," a Fox News spokesperson said in a statement.
Dominion alleged in its lawsuit that the right-wing channel "recklessly disregarded the truth" and accused Fox of wanting a "license to knowingly spread lies."
In his deposition for the case, Rupert Murdoch even acknowledged that some hosts "endorsed" false claims.
Internal messages also showed that top hosts, including Tucker Carlson, Sean Hannity and Laura Ingraham derided the stolen election claims in private text messages but continued to air them in an effort to keep viewers from turning their attention to competing networks.
Last week, Davis issued a summary judgment ruling that it was "CRYSTAL clear" that Fox News and Fox Business had made false claims about the company.
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However, proving "actual malice" can be a difficult standard to meet so news organizations are given "breathing space" even when reporters make mistakes, Lidsky said.
But at the same time, Lidsky added she has never seen a case with so much evidence providing a look behind the scenes of the decision-making processes at a news organization.
"As a First Amendment scholar, as a media law scholar, as somebody who really thinks there's constitutional value in having a free and independent press, I hope this doesn't further damage the media as a whole in the eyes of public opinion," Lidsky said. "Even the idea that's been prominent in our First Amendment jurisprudence [is] that the press plays a special role in informing the public about things they need to know as citizens. In First Amendment case law, there's a constant strain that says that a well-functioning press is essential to democratic self-governance."
So far, details in the case have been "juicy," (like Carlson admitting he hates Trump), but not really relevant to the legal issues, pointed out McQuade.
"What will matter is evidence that officials at Fox knew that what they were reporting was false," she said.
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