Last week, Judge Davis of the Delaware Superior Court delivered a major blow to Fox News in the Dominion v. Fox defamation case, sending the case to trial and finding that statements Fox made about election fraud with the Dominion voting machines in the 2020 presidential election were false.

The Judge ruled in Dominion’s favor on the falsity element. In order to prove its case, Dominion must prove that Fox knowingly spread false information about Dominion. Both Dominion and Fox moved for summary judgment. Judge Davis denied the parties’ summary judgment motions in large part, ultimately sending the case to trial, but made one critical decision. Judge Davis held that as a matter of law Fox failed to demonstrate a material issue of fact as to the falsity element, writing that “[t]he evidence developed in this civil proceeding demonstrates that [it] is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true.” Based on that, the Court granted summary judgment in favor of Dominion on the element of falsity.

Fox’s First Amendment defenses. Fox’s defense has centered on the First Amendment—arguing that its speech was protected under the First Amendment, based on three theories: (1) the “neutral reportage defense,” (2) the “fair report” privilege, and (3) opinion. Judge Davis held that Fox was not entitled to the neutral reportage and fair report defenses. As to the neutral reportage privilege, the court explained that New York law does not recognize the defense—and even if it did apply, “the evidence does not support that FNN conduced good-faith, disinterested reporting.” And as to statements Fox claimed were opinion, the Judge wrote that he found it “oxymoronic” for Fox to claim that certain statements were "opinions while also asserting the Statements are newsworthy allegations and/or substantially Accurate reports of official proceedings.”

What’s left for the jury?  In order to prevail, Dominion must convince a jury that Fox spread false claims about Dominion, knowing that they were false. Dominion seeks $1.6 billion in damages from Fox. Because Judge Davis held that Fox’s statements were false as a matter of law, the jury will decide whether Fox acted with malice and, if so, what damages Dominion is entitled to. 

On April 5, the Judge also held that he can compel the Murdochs to testify at the trial, which is expected to begin on April 17.