Dominion Voting System’s $1.6 billion defamation lawsuit against Fox News, pending in Delaware state court, will, I expect, produce the mother of all verdicts.

I rarely attempt to predict the outcome of jury trials, because, as a wise judge once cautioned in persuading me to settle a case over which he was presiding, “a jury can do just about anything but make you pregnant.” This potential verdict in this case, however, has “blockbuster” written all over it.

A defendant in a defamation suit can be held liable for damages for “publishing” (communicating) false statements that are injurious to the reputation of the plaintiff.

Usually the plaintiff only has to prove the defendant was negligent in fact-checking the defamatory statement before publishing it. However, in 1964, in the case of New York Times Co. v. Sullivan, the Court set a higher standard of proof for defamation suits where the plaintiff is a public official and the defamatory statement relates to his official conduct.

It held that the plaintiff, in order to prevail, must show “actual malice” — namely, that the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” The purpose of this higher standard was to protect robust political debate under the free speech clause of the First Amendment. The Sullivan rule has often shielded journalists from liability for unintentional reporting errors committed in their rush to get timely news out to the public.

Later Supreme Court rulings extended the “actual malice” standard to “public figures” (those who had gained notoriety by thrusting themselves into the limelight).

In my experience, juries don’t take kindly to those who’ve committed defamation, particularly defendants who’ve done so intentionally and maliciously. The one thing with which every juror, rich or poor, can identify is the importance of maintaining a good reputation and the trust and respect it engenders. In fact, the only time a jury ever awarded me a larger verdict than I asked for was in a defamation case.

Dominion is in the business of producing and selling electronic voting hardware and softwear. Like most businesses, its success rests upon its reputation for the quality and reliability of its products and services. Following the 2020 presidential election, for reasons entirely beyond its control, its reputation came under vicious attack.

In the immediate aftermath of the election, when it became clear that Donald Trump had lost the popular and electoral tallies, he decided to declare victory anyway, falsely claiming the election had been “stolen” from him through a conspiracy involving massive electoral fraud in key swing states.

Trump’s explanations as to how such electoral fraud could have taken place right under the noses of local poll workers and state election officials were as varied and fanciful as any conspiracy theorist could conjure.

One of the biggest whoppers was that Dominion voting machines, which tabulated the ballots in a number of swing state precincts, misreported the results, understating the numbers for Trump and overstating those for Joe Biden.

Trump’s minions, notably Sidney Powell and Rudy Giuliani, spread out across the country disseminating this tale, trying to pressure state election officials and legislators into declaring the results void, refusing to certify them or creating alternative slates of pro-Trump electors.

That’s where Fox News and its companion Fox Business Network entered the picture.

The cable news outlet, noted for its strongly conservative, pro-Republican bias, saw its ratings soar during the four years of Trump’s presidency, thanks to expansive and adoring coverage of Trump that solidified its popularity with his “base.” But viewership began to plummet after Fox’s Election Night team became the first in the country to project Biden as winner of the critical state of Arizona, and Fox’s executives and on-air personalities fretted about the risk of losing their audience to more extreme pro-Trump panderers like Newsmax.

Yet at the same time, according to recent pleadings filed by Dominion in its defamation suit against Fox, the company’s inner circle realized the “stolen” election conspiracy claims were pure fiction. Dominion has cited inter-company texts and emails by personalities Sean Hannity, Tucker Carlson and Laura Ingraham, as well as owner Rupert Murdoch, in which they expressed their disbelief in the both the fraud message and its messengers, using words like “terrible stuff,” “lying,” “insane” and “nuts.”

Their misgivings notwithstanding, however, several of Fox’s biggest stars, including Hannity, Maria Bartiromo and Lou Dobbs, continued to interview Powell and other guests promoting the stolen-election myth, airing their outrageous assertions without questioning their veracity.

I don’t know whether Dominion will be considered a “public figure,” subject to the higher standard of proof of the Sullivan precedent. Even if it is, however, the bottom line of Sullivan is that you can make an honest mistake in disseminating misstatements about public figures, but you’re not allowed to knowingly spread lies that are damaging to their reputations and pocketbooks.

Did Fox knowingly publish false statements about Dominion’s involvement in a conspiracy to commit electoral fraud? In other words, did it act with “actual malice”?

That question will be up to the jury to decide.

My guess, however, is that Dominion’s attorneys will let Fox and friends prove their case for them. At trial, they’ll likely call a luminary lineup of Fox personalities to the witness stand, play snippets of their on-air interviews and comments promoting election fraud theories, and then make them repeat, in their own words, the expressions of disbelief in those theories they were sharing with one another behind the scenes.

Then Dominion’s lawyer will sit back and wait for the jury to return a verdict so large it will require a fleet of Brink’s armored trucks to deliver it.

Elliott Epstein is a trial lawyer with Andrucki & King in Lewiston. His Rearview Mirror column, which has appeared in the Sun Journal for 16 years, analyzes current events in an historical context. He is also the author of “Lucifer’s Child,” a book about the notorious 1984 child murder of Angela Palmer. He may be contacted at epsteinel@yahoo.com

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