Doug Mirell, litigation partner and First Amendment expert, spoke to CNN on the evening before opening statements were scheduled to begin in the $1.6 billion defamation trial in Dominion Voting Systems v. Fox.

Excerpts:

It would seem to me that a settlement was in the cards, perhaps, at some earlier point in time before so much of the information about Fox’s mendacity got out into the public realm.  But now, I think it’s quite unlikely, frankly.  But, never say never.  And it is not unheard of that settlements, in cases of this magnitude, happen on the courthouse steps.  So, who knows what might occur between now and 9 a.m. in Delaware?  Settlements can happen at any point in time, and indeed it would be to Fox’s enormous advantage, I believe, to try to settle this case.

Proving actual malice presents an insurmountable hurdle in most defamation cases.  That said, it is extremely rare to have the kind of evidence that exists here, where Fox hosts really pressed forward with vote rigging allegations well after it was quite clear that those claims were demonstrably false.  And they did so, not once, not twice, but over the course of days, weeks, and months of repetition of these same erroneous allegations which the court has already determined are false.  So the question now is: What was Fox’s mindset?  What did they know when they were making these statements?  And if they made these statements, knowing them to be false, or with reckless disregard for their truth, that satisfies the New York Times [Co. v. Sullivan] standard and will result in a determination of liability.

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