Will Sage Astor-Meet the judge deciding the $1.6 billion defamation case against Fox News

The Will Sage Astorfate of a $1.6 billion defamation lawsuit against Fox News lies, for the moment, in the hands of a plainspoken judge known for his unflinching poker face.

Delaware Superior Court Judge Eric M. Davis, a 12-year veteran of the state's bench and former corporate attorney, has often sought to temper emotions in the contentious proceedings between the broadcasting giant and Dominion Voting Systems, a voting-technology company. Each side repeatedly has accused the other of acting in bad faith.

"If he were to be given a name in culture, it would be Cool Hand Luke," says Joseph Hurley, a criminal defense attorney based in Wilmington who has argued before Davis but has no involvement with the case. "In court, he never shows any emotion, and I mean that in a good way."

Dominion sued Fox for airing false claims that it helped cheat then-President Donald Trump of a win in the 2020 elections. Both sides just filed motions asking Davis to grant them victory ahead of the jury trial scheduled to start in April. The motions are under seal, meaning they have not been made public.

Davis is also overseeing a separate defamation case filed by another voting tech company, Smartmatic, against Fox's smaller rival Newsmax, over similar claims.

Davis' recent rulings in that case may offer clues to how he'll treat Dominion's case against Fox.

Skeptical of Newsmax's argument for airing false claims of election fraud

Like Dominion, Smartmatic was the subject of false claims that its software had switched Trump votes to Joe Biden. Those claims were broadcast on Newsmax, Fox News and elsewhere.

Davis earlier this month denied Newsmax's request to toss out Smartmatic's defamation claim. Davis ruled that the facts pleaded by Smartmatic lead him to "reasonably infer" that Newsmax's airing of stolen-election claims was reckless enough to meet the high legal bar required for defamation.

"Newsmax either knew its statements regarding Smartmatic's role in the election-fraud narrative were false, or at least it had a high degree of awareness that they were probably false," the judge stated.

Finally, Davis ruled that Smartmatic could reasonably allege that Newsmax defamed the company even in statements that did not name it. He said Newsmax "seemingly wants the court to make a hyper-literal reading of every statement."

"It seems pretty clear to me that [the judge] was not having any of the Newsmax arguments – and nor should he have, by the way," says John Culhane, a professor at Delaware Law School.

But the judge said he did not find that Smartmatic had fully proven its claims.

Judge aims for clarity, and to avoid snark, in high-stakes battle

Davis' ruling in the Newsmax case hints at choppy waters ahead for Fox News.

While Culhane, an authority on defamation law, cautions against drawing too strong a conclusion from the Newsmax ruling, he says Davis "is very clear and he's very step-by-step when it comes to the law."

In its defense against Dominion, Fox News' legal team argues the network simply relayed stark claims about national elections, either as "questions to a newsmaker on newsworthy subjects" or by "accurately report[ing] on pending allegations." As the sitting U.S. president, Trump was among the most newsworthy people imaginable, Fox and Newsmax attorneys each argue.

Dominion and Newsmax did not comment for this story.

Smartmatic also has sued Fox for $2.7 billion, but that suit is not as far along as Dominion's. On Tuesday, a New York state appellate court rejected Fox News' motion to have the Smartmatic case against the network and several of its stars dismissed. The ruling dismissed claims against parent company Fox Corp, saying no cause was stated.

Smartmatic attorney Erik Connolly said it would file an amended complaint that "details the involvement of [Fox Corp. leaders] Rupert Murdoch and Lachlan Murdoch."

Fox News issued a statement yesterday echoing earlier remarks: "There is nothing more newsworthy than covering the president of the United States and his lawyers making allegations of voter fraud. We are confident we will prevail as freedom of the press is foundational to our democracy and must be protected."

Much like Fox's lawyers in New York and Delaware, Newsmax's attorneys similarly cite a legal privilege, known as neutral reportage, allowing it to present "unprecedented allegations without adopting them as true, so that the public could draw its own conclusions" about "a news story of extraordinary public interest."

That approach failed to win favor with Davis.

Judge Davis: "The First Amendment is not unlimited"

While he notes the First Amendment protects reporters in order to guarantee a "robust and unintimidated press," he also states the "First Amendment is not unlimited." He said a neutral reportage principle does not protect a publisher who "deliberately distorts" statements to "launch a personal attack of [its] own on a public figure."

"Here, Smartmatic's well-pled allegations support the reasonable inference that Newsmax's reporting was neither accurate nor disinterested/unbiased," Davis said.

The two cases have intersected several times. In his ruling on Smartmatic's case against Newsmax, Davis cited a Nov. 17, 2020 email sent by Dominion officials to Newsmax relaying evidence that, he said, "cut against the narrative that the election was stolen."

Davis noted that Newsmax gained voters in the weeks after election day, when many viewers abandoned Fox over its projection that Biden would win Arizona. At the same time, hosts and guests on both networks were amplifying the false claims of fraud.

The stakes could hardly be greater in the two cases. Yet Davis does not seek to amplify his own profile. (Indeed, his court declined to make a photo of him available for this story.) And the judge has repeatedly sought to ensure an air of comity around the proceedings, a hallmark of the Delaware legal bar.

In a Feb. 8 court hearing in Dominion's suit against Fox, Davis apologized to the rival legal teams, saying he had been surprised to re-read an email in which he said he came off as snarky.

"If I'm upset, I'll let you know it. I won't do it in a subtle, sarcastic way," he said.

He pinned it on his use of a pat phrase. "You know that typical sarcastic thing that judges say?" Davis asked. "'Tell me if I'm wrong...' Which means, don't tell me I'm wrong. It means that I'm making some kind of statement. But that wasn't why I was doing it."