Rupert Murdoch
Rupert Murdoch (Image: AP/Mary Altaffer)

The defamation case between Dominion Voting Systems and the Murdoch-controlled Fox News has been delayed by one day amid reports that both parties are considering a possible settlement. 

The highly anticipated trial was delayed on Sunday by Judge Eric Davis of Delaware’s Superior Court, who according to reports said in a statement that jury selection would begin at 9am Tuesday (local time), pushing back the beginning of the trial 24 hours without explanation.

The Wall Street Journal, another Murdoch media asset, was the first to break the news of possible settlement talks on Monday (AEST), reporting that the network was “looking for a possible way” into a late settlement, citing people familiar with the situation. The newspaper was followed by Reuters, citing one source, and The Washington Post, which cited two sources familiar with the matter.

Dominion is suing Fox News for damages of US$1.6 billion over claims that Fox knowingly or recklessly broadcast lies suggesting that the voting machines company facilitated voter fraud at the 2020 US presidential election that saw Donald Trump removed from office.

The blockbuster trial is expected to call Fox Corp chairman Rupert Murdoch to testify in person, along with his son Lachlan, who serves as the company’s chief executive. Fox News CEO Suzanne Scott and high-profile hosts Sean Hannity and Tucker Carlson are also expected to testify, as well as former host Lou Dobbs.

Last week, Bloomberg reported that Rupert Murdoch could be the second witness called to testify, and appear as early as the first or second day of the trial. The first witness is likely to be a constitutional First Amendment expert, according to the report, which cited sources familiar with the matter. 

On Monday it reported that sporadic settlement talks had grown “more serious” over the weekend as Rupert Murdoch, 92, weighed the prospect of testifying before a jury in defence of the network’s decision to allow hosts to peddle false claims of election fraud on air. 

In response to the allegations, Fox claimed it was exercising its right to report on newsworthy allegations levelled by Trump, who was president at the time, and that those claims were protected by the First Amendment as opinion. 

As it stands, it will be on Dominion to prove that Fox knowingly spread information it knew to be false, or that it did so with reckless disregard for the truth, an exceedingly high bar set for defamation cases in the US. 

That high bar was set by a landmark Supreme Court ruling on The New York Times v Sullivan in 1964, which reinforced freedom of the press protections under the First Amendment, after civil rights leaders ran a full-page ad in The New York Times to raise funds while Martin Luther King Jr was facing indictment. 

The ad described “an unprecedented wave of terror” of police actions against peaceful civil rights protesters, and the judge ruled in the Times’ favour, essentially enshrining freedom of the press into the US constitution. 

For Dominion to beat Fox, legal analysts said it would have to prove that Fox acted with “actual malice”. Dominion had already obtained a ruling from Davis that it was “crystal clear” Fox News’ statements about Dominion were false. Now it must demonstrate both malice and that those false statements caused harm.