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Judge prepares for start of 'Dominion v. Fox' trial amid settlement talks

AILSA CHANG, HOST:

We turn to the major lawsuit against Fox News that's set to go to trial tomorrow. A voting technology company is suing the network over false claims that were broadcast following the 2020 presidential election. Dominion Voting Systems says it wants $1.6 billion and an apology from Fox.

NPR media correspondent David Folkenflik is in Wilmington, Del., to cover the trial and joins us now. Hey, David.

DAVID FOLKENFLIK, BYLINE: Hey, Ailsa.

CHANG: So I know the trial was supposed to begin today, right? And the judge delayed it until tomorrow. Tell us why.

FOLKENFLIK: Well, it appears that lawyers for Fox and Dominion conveyed the message to the judge that they were having serious talks that perhaps they'd be able to settle this ahead of a jury. Delaware Superior Court Judge Eric M. Davis is running this - a tight ship on this trial. And I think he would be happy for the two sides to resolve this to mutual satisfaction. Fox indicated in a legal filing late last night that Dominion had basically shaved $600 million off their ask for damages. And maybe this was a subtle sign they wanted to do some business. But Dominion said in a statement to me earlier today and to other press outlets as well, no. It said it was standing by its ask for $1.6 billion and that Fox knew it had done that amount of damage and more. So the body language from both sides at the moment is, we're headed back to court tomorrow morning.

CHANG: Yeah.

FOLKENFLIK: We'll see what transpires.

CHANG: OK. And just remind us what is at the heart of this lawsuit.

FOLKENFLIK: The heart of this lawsuit - the allegations from Dominion Voting Systems that Fox News broadcast lies about this voting tech company, that it participated in a scheme to defraud then-President Donald Trump of victory in November of 2020 by falsely throwing votes to Joe Biden. There is no truth to these claims. In fact, the judge has already found these claims are false. They're defamatory. That is harmful to the reputation of this company. And really, what's left on the table is, should Fox be held liable for it? Does it meet a very tough legal standard called actual malice, in which First Amendment rights are protected and free speech rights are protected?

But nonetheless, there is some accountability - very high bar to meet. And yet Dominion has acquired just a mountain of evidence to show that people behind the scenes on Fox, people at the top levels of its corporate parent down to the lowest levels of producers, with maybe a handful of exceptions, knew that what they were putting on the air wasn't true, did it anyway to try to appeal to disaffected Trump voters who were, of course, among the core of Fox's viewers.

CHANG: OK. So assuming the parties do not settle, trial begins tomorrow. Tell us more about how things are expected to unfold from there.

FOLKENFLIK: Well, you'd have - the end of jury selection happened first thing in the morning. And then you would hear the opening arguments - Dominion arguing, look; there has to be some accountability; we believe in American system of freedom of speech, freedom of the press and holding government officials accountable; this is not that; this is wanton lying - and Fox saying, look; you're going to do real damage to freedom of expression in this country and to the media itself if you don't hold - if you don't allow us to have some room to get some things wrong even as we were reporting a lot of these - debunking reports in real time in good faith.

CHANG: OK. I mean, David, even if a settlement were to happen, what would that settlement even look like? Like, Dominion is asking for a lot of money.

FOLKENFLIK: So there are two things. One is the money. And the second thing is an apology. And...

CHANG: Right.

FOLKENFLIK: This is a key component here. They've said from the outset at Dominion that they want Fox to, as prominently, let the public know - their viewing public know that what they put the air (ph) was false and wrong and that they shouldn't have done it. And I think there's a seesaw effect. The stingier the apology, I think the bigger the dollar figure is going to have to be that Dominion can point to.

CHANG: And just stepping back real quick, beyond the money, remind us of the stakes here in this case.

FOLKENFLIK: I would call this the most important defamation case involving a media company in four decades for two reasons. One, it may define the limits of the protections for freedom of the speech or if it's maximalist and there's no accountability. And the second is the unique role that Fox plays not only in our media sphere but in our political realms as well.

CHANG: That is NPR's David Folkenflik in Wilmington, Del. Thank you so much, David.

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

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.