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Dominion Voting System's $1.6 billion defamation suit against Fox News goes to trial

AYESHA RASCOE, HOST:

Media magnate Rupert Murdoch answered questions under oath for hours this week. Those doing the questioning were lawyers for Dominion Voting Systems, an election tech company. It has sued Murdoch's Fox News for $1.6 billion, accusing the network of defamation following the 2020 presidential election. NPR media correspondent David Folkenflik is covering the case and joins us now. Welcome to the show.

DAVID FOLKENFLIK, BYLINE: Thanks, Ayesha.

RASCOE: So Rupert Murdoch doesn't submit to questioning every day of the week. What did Dominion's legal team ask him about?

FOLKENFLIK: Sure. Well, you know, this case is about these statements that stemmed from the Election Day and the weeks following in which President Trump's surrogates and even President Trump himself came on the air and made these wild, baseless and untrue assertions about Dominion Voting Systems trying to throw the election to Joe Biden. You know, they've alleged this essentially widespread plan throughout the network to try to regain viewers after they had called Arizona for Joe Biden before pretty much anyone else. And they're trying to see the extent to which Rupert Murdoch himself was involved in shaping coverage, in saying, look. We know Trump lost, but we've got to serve our viewers and allow these wild claims and false claims of fraud to continue on our air.

RASCOE: So where does the case stand right now?

FOLKENFLIK: Well, we've learned a lot over the course of this deposition process. It's called discovery. You get depositions from people. You question them under oath. Murdoch is one of the last to be questioned. You get all kinds of documents and emails and texts and everything else you can scoop up, and we've learned things. We've learned that journalists inside Fox were essentially warning against some of the wild conspiracy theories of election fraud. In fact, in one case we were able to report a producer warned colleagues against putting Jeanine Pirro on the air to put out some of these conspiracy theories. And there have been other instances, as well. Right now we're wrapping up that so-called discovery pre-trial period. There are motions in front of the judge to dismiss the case from Fox. There's a motion from Dominion to say, you know, it's so strong, we don't even need to take a jury trial. Just find it for us. The overwhelming belief is that the judge will essentially deny both of these, in large part, and we'll see a trial ahead.

RASCOE: So what do we know about Fox's legal defense? Like, what are they saying? That they had no way of knowing about Dominion or that they were in the dark about, you know, what the actual facts of what happened in the election were?

FOLKENFLIK: Sure. Well, what Fox's lawyers are saying - they're led by Dan Webb, perhaps one of the preeminent corporate litigators in the country, chairman of Winston & Strawn. He's leading a team that's making the argument that Fox essentially was reporting newsworthy claims of fraud from newsworthy people - that is this then-sitting president of the United States, Donald Trump, and his campaign allies and representatives and lawyers and that it was inherently newsworthy. It would - you know, they have said in court documents, you know, this was the appropriate response for a journalist to take. And we'll see, you know, how they expand that argument in court. But in documents recently filed, they said, you know, Dominion is failing to prove that these statements meet all of the tests of defamation that include that there's falseness, that it's harming Dominion, that it's not just simply opinion or hyperbole and that they had reason to believe that this was clearly untrue in certain circumstances.

And in addition, in recent court filings, they've relied on these debunked conspiracy theories that were spread in other forums. And they're saying, look. This is the climate in which Fox News hosts and stars had to process and evaluate what things to present to the public. There were all kinds of claims being made. And yes, you may disagree with them, but this is what the state of play was.

RASCOE: How strong, then, does Dominion's case look?

FOLKENFLIK: I've got to say the media lawyers and the litigators that I've spoken to outside this court say that it's an unusually strong case. Defamation is awfully hard to prove - but that they have a ton of documentation already in public of false claims being presented, amplified, sometimes even endorsed by people on Fox, at a time when it was pretty clear from Fox's own reporting and elsewhere that there was no merit to it. But, of course, if it goes to trial, that's up to the jury to decide.

RASCOE: That's NPR media correspondent David Folkenflik. Thank you so much for joining us.

FOLKENFLIK: You bet. Transcript provided by NPR, Copyright NPR.

Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.
David Folkenflik was described by Geraldo Rivera of Fox News as "a really weak-kneed, backstabbing, sweaty-palmed reporter." Others have been kinder. The Columbia Journalism Review, for example, once gave him a "laurel" for reporting that immediately led the U.S. military to institute safety measures for journalists in Baghdad.