Serious Trouble
Serious Trouble
Jury Questions

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Jury Questions

More back-and-forth between Fox and Dominion shows why this case needs to go to trial

Dear listeners,

We’re back with a subscribers-only episode of Serious Trouble focused on new developments in the litigation between Fox News and Dominion Voting Systems.

Both sides have filed additional briefs. Fox lays out its argument: That it was merely reporting on a set of allegations advanced by the president of the United States — a subject that was obviously newsworthy and that was, indeed, covered widely by outlets across the political spectrum. Why didn’t Dominion sue MSNBC?, Fox wonders. After all, MSNBC reported on those same allegations.

At the core, Fox and Dominion are arguing over some factual issues that will be important to resolving their dispute. Whose allegations were these? Were they coming from some low-profile cranks (in which case, Fox’s argument that the allegations are inherently newsworthy is weakened) or were those cranks speaking as agents for the president? Did Fox merely report on the allegations, or did it endorse them? And can Fox rely on permissive rules about reporting on court proceedings, despite the fact that Rudy Giuliani and his compatriots often made wildly different accusations on television than they did in court filings?

Untangling those questions will be a fact-intensive process — we must figure out, for example, when and whether Sidney Powell was actually Donald Trump’s lawyer — and that’s why Ken is skeptical this case can be resolved in favor of either side at the summary judgment stage. It’s likely this will need to go to trial. And while that trial is theoretically supposed to start in April, it’s likely to take quite a bit more time for the parties and the judge to go through all the motions to get there.

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Serious Trouble
Serious Trouble
An irreverent podcast about the law from Josh Barro and Ken White.
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Josh Barro and Ken White