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(Reuters) -Jury selection began on Thursday in a $1.6 billion defamation lawsuit by Dominion Voting Systems against Fox Corp in a process to choose 12 people from a heavily Democratic county in Delaware to decide whether Fox News knowingly aired false claims on vote-rigging in the 2020 U.S. presidential election.
Delaware Superior Court Judge Eric Davis, presiding over the case in Wilmington, is questioning prospective jurors behind closed doors in one of the most closely watched U.S. defamation cases in years, involving a leading cable news outlet with numerous conservative commentators. In Delaware, attorneys are not allowed to speak directly with potential jurors.
Opening statements in the five-week trial are expected to begin Monday, after a jury has been chosen.
Dominion sued Fox Corp and Fox News in 2021, accusing them of ruining its reputation by airing false claims by Republican former President Donald Trump and his lawyers that the Denver-based company’s voting machines were used to rig the outcome of the election against him and in favor of Democrat Joe Biden.
The trial is considered a test of whether Fox’s coverage crossed the line between ethical journalism and the pursuit of ratings, as Dominion alleges and Fox denies. Fox has argued that coverage of the vote-rigging claims was inherently newsworthy and protected by the U.S. Constitution’s First Amendment guarantee of press freedom.
The primary question for jurors will be whether Fox knowingly spread false information or recklessly disregarded the truth, the standard of “actual malice” Dominion must show to prevail in a defamation case.
The jurors will be drawn from Delaware’s New Castle County, where Democrats outnumber Republicans more than two-to-one, according to the state’s Department of Elections. Biden represented Delaware in the U.S. Senate from 1973 until 2009.
Fox News and its conservative commentators often were supportive of Trump during his presidency.
The county’s political composition is likely to “make the defense nervous, but left-leaning people also tend to be in favor of freedom of the press,” said Melissa Gomez, president of MMG Jury Consulting.
Fox has argued in legal filings that Dominion’s damages request is “untethered from reality” and designed to enrich the company’s investors.
During the jury selection process, the judge is due to use questions that both sides have agreed to, including whether potential jurors have ever “worked in a newsroom” and whether “they regularly watch any Fox News programs.” If a prospective juror responds affirmatively, Davis may ask follow-up questions.
After the judge identifies 36 potential jurors, they will be brought to the courtroom and each side’s attorneys will have six “peremptory strikes,” in which they can dismiss a potential juror without giving a reason for doing so.
The streamlined process allows for jury selection to happen more quickly than it does in some other states. Davis has allotted two days.
It also means both sides will have a harder time trying to identify prospective jurors’ political views, which could be relevant in this case, Gomez said.
“If you have a juror who believes that the election was stolen, it will influence their position,” Gomez said. “Will the facts of the case actually matter to them if they have that underlying belief?”
The questions are limited to prospective jurors’ experience rather than their attitudes.
Questions that capture attitudes would be more likely to predict how a juror would lean in the case, according to Christina Marinakis, a jury consulting and strategy advisor at IMS Consulting and Expert Services.
“So you’re sort of shooting blind when it comes to jury selection,” Marinakis said.
Davis on Wednesday sanctioned Fox News, handing Dominion a fresh chance to gather evidence after Fox withheld records until the eve of trial. Davis said he would also very likely tap an outside investigator to probe Fox’s late disclosure of the evidence and take whatever steps necessary to remedy the situation, which he described as troubling.
