The trial for Dominion Voting Systems’ $1.6 billion defamation suit against Fox News, which legal experts are calling the most consequential defamation lawsuit in decades, is set to start Monday. The verdict will decide whether Fox News will be held accountable for spreading 2020 election lies—conspiracies that were fundamental to Donald Trump’s Big Lie. It could be the only time the likes of Fox Corp. chairman Rupert Murdoch and his son Lachlan Murdoch will be forced to answer for the outlet’s democracy-damaging coverage in a public setting. Some of the network’s top stars, like Tucker Carlson, are also expected to take the stand. It’s worth watching live. Except, unless you’ve made the trip to Wilmington, Delaware, and managed to get a seat in the courtroom, you can’t.
The trial will not be televised. The only way Americans will be able to know what’s going on inside the courtroom—outside of getting one of the roughly 200 seats available in the courtroom—will be by calling into an audio line provided by the court. “It’s better than nothing, but it’s not much better,” says Columbia Journalism School professor Bill Grueskin. Grueskin recalls his experience listening to the audio line for Sarah Palin’s defamation case against The New York Times last year. “You can’t tell who’s talking half the time, especially when the lawyers start arguing a point, or you come into the testimony part way through,” he said.
Not only will the trial not be televised, the court has banned any recording or rebroadcasting of the audio feed—hampering outlets’ abilities to playback the proceedings on the radio or TV. A group of media outlets, including the Times, CBS, ABC, NBC, and ProPublica, wrote to Judge Eric Davis seeking to record the audio stream of the trial, and to use excerpts of those recordings in their news programming. But Davis denied that request Thursday during a pretrial hearing, as the Associated Press reported. He said he’d “gone as far as I can go with response to access,” and, signaling the Delaware Superior court’s traditionally restrictive rules over public access, that the outlets were “getting the most access of any media in a Superior Court case in Delaware.” Fox’s lawyers filed an opposition brief to the media outlets’ letter, which, in a statement to Vanity Fair, Fox called “an 11th hour request that risks compromising the integrity of the trial proceedings.” Dominion Voting Systems declined to comment.
“It’s a gift to Fox News that this is not going to be broadcast live, because it spares them from the nightmarish scenario of the visual of some of their leading anchors being cross-examined and confronted with their own texts, which are contrary to what they’ve said on air,” former federal prosecutor and CNN legal analyst Elie Honig tells me. In the lead up to the trial, internal communications—obtained through the discovery process—have spilled out into the public, offering a damning look at Fox executives and stars dismissing unfounded claims and unreliable Trumpworld sources behind closed doors. “Sidney Powell is lying,” Carlson wrote in one private message, of the conspiracy-peddling Trump lawyer whom Fox repeatedly booked during the post-election period. Fox News’s attorneys appear aware of the power and stakes of live testimonies; they have actively tried to keep Rupert Murdoch off the stand, citing hours of deposition he already gave.
“All the in-room narrative reporting in the world can’t measure up to an actual audio-visual feed—the imagery—of a witness on the stand,” says Honig, who pointed to the way images from trials like that of Derek Chauvin over George Floyd’s murder have been cemented in the public consciousness. “There’s something lost” when the public can’t see the trial, Carl Tobias, a law professor at the University of Richmond, says. The visual aids can be particularly “critical when you’ve got two entirely different stories from both sides,” says Tobias. “Hopefully the press can fill in, but it just won’t be the same.”
Reporters will do their best to try to translate this moment. Among them is the Washington Post’s Erik Wemple, who was in the Wilmington courtroom this week covering the pretrial hearings. “The idea that you have to go to Wilmington just to see or get a visceral idea of what’s happening in a courtroom is not really very democratic,” Wemple tells me. The court has tried to accommodate members of the media in other ways, Wemple said, like letting them bring their computers into the courtroom to take notes (which “is better than many other courts,” he notes). But the restrictions on recording could really complicate the reporting process, especially if reporters aren’t in the room, Grueskin noted. “It’s much easier to get things wrong from a disembodied audio feed than from a good video feed,” he says. Wemple agrees. “Mistakes can be made, quotes can be mangled,” he tells me. “We’re basically, on some level, screwed.”
Wemple tells me he’s planning on working from the overflow courtroom Monday, where a camera feed has been set up and reporters are allowed to live-tweet the proceedings. (Reporters in the courtroom, on the other hand, can’t use the internet.) “There’s a reason why cameras are in the overflow room for press, and that’s so people can get some feel for facial expressions and body language in the moment of testimony and questioning—which indicates that there is some value to a visual representation” and “letting people hear words in the voices of the witnesses and participants themselves,” says NPR media correspondent and Murdoch expert David Folkenflik, who is also covering the trial. There’s a “richer media experience that we’re just not going to get,” Wemple notes, adding the restrictions are “not exclusive to Delaware by any means; this is a problem all over the place.”
“These are the circumstances we labor under,” says Folkenflik. “It’s going to be an additional responsibility of the press corps covering this to render it accurately and fairly, but also to do what we can to capture a bit of the atmosphere of what it’s like to be there in this high stakes drama, and to convey the intent of what people say in a way that may not be fully captured simply by words on a page.”
