Presidential Election of 2020

Subterms

    More stories

    • 113 Shares119 Views

      in Elections

      Judge Delays Fox and Dominion Trial by a Day

      by

      Opening statements in the $1.6 billion defamation case against Fox News were set to begin on Monday.A Delaware judge on Monday said that he had delayed by a day the start of a highly anticipated defamation trial over the spread of misinformation in the 2020 presidential election.The postponement of the trial was the latest twist in the case. Late Sunday, Judge Eric M. Davis said the proceedings would continue on Tuesday. He did not give a reason then or in his brief remarks from the bench just after 9 a.m. on Monday.“This does not seem unusual to me,” Judge Davis said, explaining that he had rarely been part of a trial that did not have some kind of delay. “I am continuing the matter until tomorrow.”The case has opened an unprecedented window into the inner workings of the country’s leading conservative news network. In the run-up to trial, Fox has handed over tens of thousands of emails and text messages exchanged among its hosts, producers and executives. Many of them revealed that there was widespread doubt inside the network over former President Donald J. Trump’s false claims that he had been cheated of victory.The case is considered a landmark test of First Amendment protections for the press and has been closely watched by legal and media analysts. Dominion’s voting machines became the focus of pro-Trump conspiracy theories that wrongly implicated the company’s technology in a plot to flip votes from Mr. Trump to President Biden.On Monday, the courtroom was filled with reporters from around the world awaiting word on when they could expect to hear opening statements from both parties and exactly what the delay was about.Boldface names from Fox News — hosts including Tucker Carlson, Sean Hannity and Maria Bartiromo, along with Rupert Murdoch, whose family controls the sprawling Fox media empire — are expected to testify if the case goes to trial.Dominion Voting Systems, an elections technology company, filed the libel lawsuit against Fox in early 2021, claiming that Fox hosts and guests repeatedly uttered lies about its role in a fictitious plot to steal the election despite knowing the claims, which had been pushed by Mr. Trump and his supporters, were not true.Fox has said that it was reporting on newsworthy allegations involving a presidential election and insisted that its broadcasts were protected under the First Amendment as commentary and news. It has also challenged Dominion’s damages claim, arguing that the company vastly overvalued itself and has not suffered the blows to its business that it says.This is a breaking news story. Check back for updates. More

    • 138 Shares99 Views

      in Elections

      Fox News Is on Trial, and So Are Falsehoods About 2020

      by

      A jury in Delaware will be asked to weigh the limits of the First Amendment. Another question in the case is whether the network will pay a financial penalty for disseminating election lies.WILMINGTON, Del. — On Monday, a judge in Delaware Superior Court is expected to swear in the jury in a defamation trial that has little precedent in American law. Fox News, one of the most powerful and profitable media companies, will defend itself against extensive evidence suggesting it told its audience a story of conspiracy and fraud in the 2020 election it knew wasn’t true.The jury will be asked to weigh lofty questions about the limits of the First Amendment and to consider imposing a huge financial penalty against Fox. Some of the most influential names in conservative media — Rupert Murdoch, Sean Hannity, Tucker Carlson — are expected to be called to testify. But there is another fundamental question the case raises: Will there be a price to pay for profiting from the spread of misinformation?Few people have been held legally accountable for their roles in trying to delegitimize President Biden’s victory. Sidney Powell, a lawyer who was one of the biggest purveyors of conspiracy theories about Dominion Voting Systems, the company suing Fox for $1.6 billion, avoided disbarment in Texas after a judge dismissed a complaint against her in February.Jenna Ellis, an attorney who worked with Ms. Powell and the Trump campaign, received a reprimand last month instead of losing her license with the Colorado bar. Donald J. Trump, whose false insistence that he was cheated of victory incited a violent mob on Jan. 6, 2021, is running for president a third time and remains the clear front-runner for the Republican nomination.Political misinformation has become so pervasive in part because, there is little the government can do to stop it.“Lying to American voters is not actually actionable,” said Andrew Weissmann, the former general counsel of the F.B.I. who was a senior member of the special counsel team under Robert S. Mueller that looked into Mr. Trump’s 2016 campaign.It’s a quirk of American law that most lies — even ones that destabilize the nation, told by people with enormous power and reach — can’t be prosecuted. Charges can be brought only in limited circumstances, such as if a business executive lies to shareholders or an individual lies to the F.B.I. Politicians can be charged if they lie about a campaign contribution, which is the essence of the criminal case against Mr. Trump by the Manhattan district attorney’s office.In the Fox News case, the trial is going forward because the law allows companies like Dominion, and people, to seek damages if they can prove their reputations were harmed by lies.The legal bar that a company like Dominion must meet to prove defamation is known as actual malice. And it is extremely difficult to prove because of the Supreme Court’s 1964 decision in New York Times Company v. Sullivan, which held that public officials can claim defamation only if they can prove that the defendants either knew that they were making a false statement or were reckless in deciding to publish the defamatory statement.“There are all sorts of times you can lie with impunity, but here there’s an actual victim,” Mr. Weissmann added. “It’s only because of the serendipity that they actually attacked a company.”Usually, there is great deference among media lawyers and First Amendment scholars toward the defendants in a libel case. They argue that the law is supposed to provide the media with breathing room to make mistakes, even serious ones, as long as they are not intentional.But many legal scholars have said that they believed there was ample evidence to support Dominion’s case, in which they argue they were intentionally harmed by the lies broadcast by Fox, and that they would not only be surprised but disappointed if a jury didn’t find Fox liable for defamation.“If this case goes the wrong way,” said John Culhane, professor of law at Delaware Law School at Widener University, “it’s clear from my perspective that would be a terrible mistake because this is about as strong as a case you’re going to get on defamation.” Mr. Culhane added that a Fox victory would only make it harder to rein in the kind of misinformation that’s rampant in pro-Trump media.“I think it would embolden them even further,” he said.This case has proved to be extraordinary on many levels, not only for its potential to deliver the kind of judgment that has so far eluded prosecutors like Mr. Weissmann, who have spent years pursuing Mr. Trump and his supporters who they believe bent the American democratic system to a breaking point.“Even if this didn’t involve Donald Trump and Fox and the insurrection, this is a unique libel trial, full stop,” said David Logan, a professor of law at Roger Williams School of Law and an expert on defamation. “There’s never been one like this before.”It is extremely rare for defamation cases to reach a jury. Mr. Logan said his research shows a steady decline over the years, with an average of 27 per year in the 1980s but only three in 2017.Some experts like Mr. Logan believe the case’s significance could grow beyond its relevance to the current disinformation-plagued political climate. They see an opportunity for the Supreme Court to eventually take the case as a vehicle to revisit libel law and the “actual malice” standard. The justices have not done that since a 1989 case involving a losing candidate for municipal office in Ohio who successfully sued a newspaper after it published a false story about him a week before the election. The court said that a public figure cannot recover damages unless there was “clear and convincing proof” of actual malice..The actual malice standard has been vital for individual journalists and media outlets who make mistakes — as long as they are honest mistakes. But some scholars like Mr. Logan — as well as two conservative Supreme Court justices, Neil M. Gorsuch and Clarence Thomas — have argued that “actual malice” should be reconsidered as too high a standard. Justice Thomas specifically cited as a reason “the proliferation of falsehoods.”“The nature of this privilege goes to the heart of our democracy, particularly in this case,” said Mr. Logan, whose paper arguing that the courts have made it too difficult for victims of libel to win relief was cited in a dissent by Justice Gorsuch in 2021.Fox lawyers are already preparing for an appeal — a sign they are under no illusion that beating Dominion’s case will be easy. At several recent hearings in front of Judge Eric M. Davis, Fox has been represented by Erin Murphy, an appellate lawyer with experience arguing cases before the Supreme Court.Dominion also apparently considers the possibility of an appeal quite realistic. It had an appellate attorney of its own, Rodney A. Smolla, arguing on its behalf when questions of Fox’s First Amendment defense arose last month — the kind of constitutional questions that federal appellate courts will entertain.The belief that the Supreme Court could eventually hear the Fox-Dominion case is shared by the general counsel of Fox Corporation, Viet Dinh. Mr. Dinh, who is likely to be called as a witness by Dominion during the trial, has told colleagues privately that he believes Fox’s odds at the Supreme Court would be good, — certainly better than in front of a Delaware jury, according to people who know his thinking. The evidence against Fox includes copious amounts of text messages and emails showing that producers, hosts and executives belittled the claims being made on air of hacked voting machines and conspiracy, details that Dominion has said prove the network defamed it.But Fox lawyers and its public relations department have been making the case that its broadcasts were protected under the First Amendment because they encompassed the kind of coverage and commentary that media outlets have a right to do on official events of intense public interest.“A free-flowing, robust American discourse depends on First Amendment protections for the press’ news gathering and reporting,” a network spokeswoman said in a written statement. The statement added that Fox viewers expected the kind of commentary that aired on the network after the election “just as they expect hyperbole, speculation and opinion from a newspaper’s op-ed section.”Judge Davis has overruled Fox on some of its First Amendment claims, limiting its ability to argue certain points at trial, such as its contention that it did not endorse any false statements by the president and his allies but merely repeated them as it would any newsworthy statement.A spokeswoman for Dominion expressed confidence, saying: “In the coming weeks, we will prove Fox spread lies causing enormous damage to Dominion. We look forward to trial.”Inside Fox, from the corporate offices in Los Angeles to the news channel’s Manhattan headquarters, there is little optimism about the case. Several current and former employees said privately that few people at the company would be surprised to see a jury return a judgment against Fox. Judge Davis has expressed considerable skepticism toward Fox in the courtroom. He issued a sanction against Fox last week when Dominion disclosed that the company had not revealed details about Mr. Murdoch’s involvement in Fox News’s affairs, ruling that Dominion had a right to conduct further depositions at Fox’s expense.But he does not have the final say. Twelve men and women from Delaware will ultimately decide the case. And defamation suits so rarely prevail, it’s also reasonable to consider the possibility that Fox does win — and what a 2024 election looks like with an emboldened pro-Trump media. More

    • 125 Shares169 Views

      in Elections

      Reader Mailbag: Presidential Announcements, That Fox Call and What’s Woke

      by

      A look at Tim Scott and whether he has an angle to build a base of support.Senator Tim Scott has started an exploratory committee for a 2024 run for president.Charles Krupa/Associated PressThere’s been surprisingly little post-Trump-indictment polling of the Republican race. As a result, we’re still in wait-and-see mode here at the Tilt — and we’ve been waiting long enough that it has become easy to forget what we were even waiting for.In the interim, let’s jump into the mailbag.Off-season?As I wrote a few weeks ago, we’d like the mailbag to be a regular feature during the “off-season,” which brings us to our first question:What is meant by “during the off-season?” Off-season of what? — Jan PanellaI suppose it’s off “election season” or “campaign season.” There’s a predicable ebb and flow to the pace and import of political news, with a slow first half of odd-numbered years ramping up to the heart of the campaign season in the fall of even-numbered years.Reacting to announcementsOf course, it hasn’t exactly been the slowest news week. Tim Scott, a Republican senator from South Carolina, announced an exploratory presidential committee on Wednesday.What, if anything, do you “do” or look for when you see a presidential announcement from a lesser-known candidate, like Sen. Scott or Nikki Haley? — Kevin in Windsor Terrace, BrooklynI watch a lot of YouTube videos. I watch the speeches the candidates gave at the last party convention. I watch their interviews on Fox News. I watch their victory speeches on election night, and so on. I do not read their books.What am I looking for? A lot of it is entirely superficial: I want to know if they have that “it” factor that might help them catch fire. This is fairly subjective, of course, but there isn’t usually much debate about the truly special candidates, and it usually takes a pretty special candidate to rise from obscurity on the strength of performance on the trail or on the campaign stage.I wouldn’t usually comment on this sort of thing, but Mr. Scott is a fairly typical presidential candidate by these sorts of measures. I would not expect him to break through simply on the strength of his media appearances, campaign speeches and debate performances.What I would comment on, however, is whether candidates have an angle that might help them build a base of support. Usually, the easiest way to build a base is to cater to the needs of a major faction, especially if that faction is out of the grasp of the party’s leading candidate. Most relatively unknown candidates gain a foothold in this way, like Bernie Sanders’s appeal to progressives.These two big questions interact in important ways. A factional candidate might not need to have “it” to play a big role in the race even if they might struggle to win in the end. On the other hand, broadly appealing candidates without a factional base might really need some special performances to break through. Otherwise, they might languish in obscurity alongside the likes of Jay Inslee or Tim Pawlenty.By this measure, Mr. Scott seems likelier to languish. Like a fellow South Carolinian, Nikki Haley, Mr. Scott has positioned himself as an antidote to the “woke” left’s views on race and America. While this is likely to have broad appeal throughout the party, it doesn’t make him the natural favorite of any particular segment of the party. He’s certainly not going to outdo Ron DeSantis in the “anti-woke” department. His announcement video did emphasize his religious faith and opposition to abortion, but it is not obvious that he’s a natural leader of the religious right — like a Mike Huckabee or a Rick Santorum.Front-runnersThis cycle, there’s another consideration: What if the front-runners fade?In the jungle, male lions often battle one another for dominance of the pride. The loser usually departs with his tail between his legs or leaves to go nurse what can be life-threatening injuries. The victorious lion may have incurred some injuries in the battle, which makes him a target for a younger male lion who senses an opportunity.Question: if Trump and DeSantis go at one another viciously, is there a viable Republican candidate on the sidelines who might step in and capitalize on their weakness? — Roger LevineHistorically, it would be pretty unusual for two candidates as strong as Donald J. Trump or Mr. DeSantis to collapse, whether on their own or while locked in hand-to-hand combat. That said, Mr. Trump’s legal issues and Mr. DeSantis’s status as a first-time candidate make this possibility seem likelier than usual for two candidates with good poll numbers.If the front-runners collapse, many viable candidates will jump into the race. But I’m not sure there’s anyone I would describe as “stepping in,” which at least to me implies someone strong, waiting in the wings, and ready to take over and restore order to the situation, sort of like if Joe Biden had stepped in if Hillary Clinton had been sidelined for any reason in 2016. This time, Ted Cruz might be the closest analogue. Perhaps Mike Pence could still play a similar role, too.Questions on what’s wokeOur newsletter on “woke” and the new left received more email feedback than just about any we’ve done. Most of the feedback was positive, though at least a few points of clarification may be in order:What a misleading article to portray the Democratic Party as having been taken over by this entity known as the new left. I don’t think that the elections of 2020 or 2022 indicate a takeover by the new left. — Ira BezozaWhoa, Ira, I did not say the Democratic Party had been taken over by the “new” New Left. Mr. Biden is the president, after all. Mr. Sanders lost, twice. The Squad is not an army. Indeed, one of the biggest reasons Republicans have struggled to capitalize on the rise of the “woke” left may be exactly because the Democrats have tended to nominate relatively moderate candidates.The new left, however, is very real and it’s a focal point of Republican attacks. And while this new left may be out of power, it exercises outsized influence in American life, thanks to its presence in upper echelons of society.About that Fox callThe Fox call on Arizona also elicited a lot of feedback, including plenty who simply wondered why the press is involved in the race-calling business at all:Great piece on Fox … But isn’t there a massive bigger issue missed in this entire debate which is the media stampede to call the election itself? I mean, seriously, isn’t it time someone reflected on all that? — Catherine CusackFor what it’s worth, I don’t think there’s a stampede to call the election. Here at The Times, we didn’t call the 2020 presidential election until the Saturday after. We didn’t call control of the House in 2022 for a week.But this is slightly different than the question at hand: Why call races at all? The simple explanation is that there isn’t an “official” winner for a month, and people want and need to know who won well before then. The alternative to media projections isn’t pretty. There would be great uncertainty about the outcome, and bad actors might step in. Mr. Trump’s declaration of victory on election night, for instance, might have been far more confusing and convincing to the public if not for the expectation that the media would call the race if it was truly over. More

    • 150 Shares119 Views

      in Elections

      What Protects Fox News In the Dominion Trial Also Protects Our Democracy

      by

      Fox News, which is defending itself from Dominion Voting Systems’ $1.6 billion lawsuit, is going to trial on Monday in a hole. In an unusual move, the judge has already ruled that on-air statements — those asserting that Dominion’s voting machines played a role in causing Donald Trump to lose the 2020 election — were false. The main task left for the jury is to decide whether Fox made those false statements with what’s known as actual malice.It’s remarkable that Dominion’s suit has gotten this far and may even ultimately prevail, thanks in part to a raft of incredibly damaging Fox emails, text messages and other evidence that show deep internal misgivings about on-air claims about the 2020 election. But proving actual malice is difficult: Dominion must show that Fox News either knew that its reporting was false or entertained serious doubts about the truth of the reporting. This high bar, set by the Supreme Court in 1964, often is insurmountable for plaintiffs.Given the evidence against Fox that already has been made public, it might seem unfair that Dominion continues to face such an uphill battle in this case. But it is a very good thing for our democracy that it is so difficult to prove actual malice.A movement to erode this legal protection has gained steam in recent years, but the main push has not come from Fox critics. Rather, conservatives have characterized the protections as unfairly enabling liberal news outlets to lie. Commentators, politicians, judges and two Supreme Court justices have urged the court to reconsider these protections.The Dominion case demonstrates why this politicization is the wrong course. Overturning nearly six decades of vital First Amendment precedent would not benefit conservatives, liberals or anyone other than those who seek to stifle reporting and criticism with the threat of litigation.Sixty-three years ago, this newspaper ran a full-page advertisement from a civil rights committee that accused Southern officials of mistreating Martin Luther King Jr. and other peaceful protesters. Some statements were untrue. For instance, although the city of Montgomery, Ala., had deployed the police near a local college, the officers did not “ring” the campus, as the ad alleged. L.B. Sullivan, a Montgomery city commissioner who supervised the police, sued The New York Times for defamation, and the all-white jury found against The Times and four Black ministers whose names were on the advertisement and awarded Sullivan $500,000.The Supreme Court in 1964 unanimously overturned that ruling, reasoning that public officials must establish actual malice before recovering defamation damages. Justice William Brennan touted the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The court later expanded this requirement to public-figure defamation plaintiffs.The merits of New York Times v. Sullivan have long been the subject of academic debate, but its survival was not seriously questioned until 2019, when Justice Clarence Thomas called on the court to revisit the decision. He deemed Sullivan and its progeny “policy-driven decisions masquerading as constitutional law.” Two years later, Justice Neil Gorsuch joined Justice Thomas, arguing that the actual malice rule might enable the spread of falsehoods online and on cable news.As the Supreme Court showed last year when it overturned Roe v. Wade, no precedent is entirely safe from reversal, so any supporters of Sullivan should be quite concerned by two justices calling to revisit the case.Sullivan is increasingly under attack. This month, for instance, a Trump-appointed federal judge in Florida took a swipe at the actual malice standard when applying it to rule in favor of CNN in a defamation lawsuit that the lawyer Alan Dershowitz brought against the network. “Policy-based decisions” such as the actual malice rule are best left to elected legislatures, “not to an unelected judge who may be king or queen for a day (or a lifetime),” Judge Raag Singhal wrote. Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit cited the media’s “bias against the Republican Party” in his 2021 call to overturn Sullivan. And at a February round table about the news media, Gov. Ron DeSantis of Florida said the precedent enables the media to “smear” politicians.The actual malice rule protects speakers regardless of politics. It protects CNN and The New York Times. It protects Fox News and Newsmax. The rule gives them the flexibility to investigate, report on and criticize the most powerful people and companies without fearing ruinous liability because of an accidental error. It also protects individual speakers on social media.The precedent does not provide media outlets and other speakers with a blank check to knowingly lie. Actual malice is a high bar, but it is not insurmountable. Dominion has already produced emails and other evidence that Fox employees and executives privately entertained serious doubts about many claims about the election. The jury could well conclude that Fox knew of the statements’ falsity or were sufficiently aware of their probable falsity. But Sullivan gives Fox the opportunity to present this defense rather than automatically becoming liable for every error.Judges who argue that the actual malice rule may not be rooted in the First Amendment gloss over the threat to speech posed by using the power of the government — court judgments — to punish speech.Attacks on Sullivan are attacks on the building blocks of democracy, and they should concern everyone who cares about free speech, regardless of political affiliation. We have seen how the powerful have weaponized weaker defamation laws in other countries. In a December report, UNESCO noted that there has been a global increase in civil defamation lawsuits that often aim “to target journalists who publish content that makes public officials or powerful economic actors uncomfortable.” A 2020 report from the Foreign Policy Center observed that since a right-wing populist party rose to power in Poland in 2015, a Polish daily newspaper had received more than 55 legal threats from “powerful state actors,” state-owned companies and people tied to the ruling party.Fearing such an outcome, Matthew Schafer, a First Amendment lawyer (who represented The Times a number of years ago), and I came up with a backup plan: In a recent law review article, we proposed a federal statute that would codify the actual malice rule and other vital free speech and press protections. While courts and state legislatures would be free to impose even stronger protections, our proposal would prevent a sudden erosion of free speech because of a single Supreme Court opinion.Hopefully, such a plan will be unnecessary and judges will come to again recognize the enduring value of Sullivan. The Dominion trial is an opportunity for the nation to witness how this “profound national commitment” protects all speakers. And it will be in the best interests of conservatives to fight to protect Sullivan rather than to tear it down.Jeff Kosseff is a senior legal fellow at The Future of Free Speech Project and the author of the forthcoming book “Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 100 Shares199 Views

      in Elections

      Witness Testimony Helps Prosecutors Advance Trump Election Case

      by

      The Justice Department’s success in compelling top aides to former President Donald Trump to testify to a grand jury moves the special counsel closer to a decision on seeking indictments.Without fanfare, the Justice Department’s investigation into former President Donald J. Trump’s attempts to overturn the 2020 election is approaching an important milestone.After nearly nine months of behind-the-scenes clashes, Mr. Trump’s lawyers have largely lost their battle to limit testimony from some of his closest aides to a federal grand jury. The decisions, in a string of related cases, represent an almost total failure by Mr. Trump to constrain the reach of the inquiry and have strengthened the position of Jack Smith, the special counsel overseeing the investigation, as he builds an accounting of the former president’s efforts to retain power after his defeat at the polls.Having lost their challenges to grand jury subpoenas and largely failed to limit the scope of their testimony with assertions of executive and attorney-client privilege, a last group of aides is now being forced to answer questions.On Tuesday, it was Stephen Miller, an adviser and top speechwriter for Mr. Trump, who showed up in Federal District Court in Washington and spent several hours in front of the grand jury. On Thursday, it was John Ratcliffe, the former director of national intelligence. The process could culminate near the end of this month with an appearance by former Vice President Mike Pence.While questions linger over pending appeals and potential efforts by some of the witnesses to delay things further by invoking the Fifth Amendment, the developments suggest that Mr. Smith is close to finishing the fact-finding phase of his work and is moving closer to a decision about seeking charges against Mr. Trump and others.There are no clear indications about when Mr. Smith might decide about charges in the case, but he faces pressure on several fronts to keep the process moving.The political season could be a consideration: The 2024 presidential race is heating up, with Mr. Trump still regarded as the front-runner for the Republican nomination, and the first debate of the G.O.P. primary season has been scheduled for August.On the legal front, the looming decision by a district attorney in Georgia, Fani T. Willis, on whether to seek indictment of Mr. Trump on charges related to his efforts to overturn his election loss has placed added pressure on Mr. Smith, who must decide whether allowing another prosecutor to go first with similar charges could complicate any prosecution he pursues.Former Vice President Mike Pence may testify before a grand jury by the end of this month.Winnie Au for The New York Times“The speed of the Georgia state investigation increases the pressure on Jack Smith to move with alacrity and to get his witnesses before the federal grand jury now,” said John P. Fishwick Jr., an Obama appointee who served as the U.S. attorney for the Western District of Virginia from 2015 to 2017. “Once the state indictment comes down, it can really bog down the D.O.J. investigation.”Among those who have worked with him, Mr. Smith is seen as a diligent manager bent on collecting the information needed to make a decision while remaining cognizant of the time pressures and the highly partisan atmosphere in which he is operating.In his first and only public comments — a statement emailed to reporters shortly after his appointment in November — he vowed that the pace of his Trump investigations would “not pause or flag,” noting that he would “move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”Mr. Smith is also overseeing the parallel investigation into Mr. Trump’s handling of classified information after leaving office and whether the former president obstructed government efforts to reclaim the materials..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.Attorney General Merrick B. Garland, who will ultimately make the decision on whether to indict Mr. Trump, has told associates that he will not overrule Mr. Smith’s judgment, whatever it turns out to be, unless he believes the special counsel has deviated from departmental standards and procedures.Mr. Garland, and his top deputy Lisa O. Monaco, have publicly projected an air of detachment from the case, but they have been following developments in the privilege fights that have been playing out in the federal courthouse that sits just a few blocks from their office. They have been receiving regular briefings from aides who are getting updates from members of Mr. Smith’s team, according to two people familiar with the situation.The legal battles over privilege began well before Mr. Smith was appointed to the special counsel post and have pitted two powerful forces against each other.Jack Smith has been leading the inquiry since his appointment in November.Pool photo by Peter DejongIn the course of the investigation into Mr. Trump’s efforts to overturn the election, federal prosecutors have subpoenaed an army of Mr. Trump’s former aides in an effort to have the grand jury hear as many firsthand accounts as possible of his behavior in the White House in the days leading up to the attack on the Capitol on Jan. 6, 2021.Mr. Trump’s lawyers have countered by asserting that any adviser close to the former president should not have to answer certain questions in front of the grand jury because of attorney-client privilege, which protects communications between lawyers and those they represent, and executive privilege, which shields some communications between the president and members of his administration.Among the first people to engage in this debate were Marc Short and Greg Jacob, two of Mr. Pence’s top aides, who went into the grand jury in July and asserted privilege in response to certain questions, prompting prosecutors to file motions compelling their full testimony. Setting a pattern for the months that followed, Mr. Trump’s lawyers fought those motions but ultimately lost their case in front of Beryl A. Howell, then the chief federal judge in Washington, and subsequently in front of a federal appeals court.With the privilege waived, Mr. Short and Mr. Jacob testified for a second time in October. They were followed two months later by Pat A. Cipollone and Patrick F. Philbin, the two top lawyers in Mr. Trump’s White House, who went through the same process.The fight dragged on into this year as another round of aides — including Mr. Miller; Dan Scavino, a onetime deputy chief of staff; and Mr. Scavino’s boss, Mark Meadows, Mr. Trump’s final chief of staff — all tried, and failed, to assert forms of privileges. The last skirmish took place just a couple of weeks ago when a new chief judge, James E. Boasberg, turned down efforts to limit Mr. Pence’s testimony.While getting these witnesses in front of the grand jury has been challenging and time consuming, the accounts they have given — or will eventually give — are only a fraction of the total body of evidence that Mr. Smith and his predecessors have gathered.Well before Mr. Smith arrived, another prosecutor, Thomas P. Windom, obtained grand jury testimony from pro-Trump figures like Ali Alexander, who organized several prominent “Stop the Steal” events, and from a wide array of state officials involved in a plan to create fake slates of pro-Trump electors in swing states that were actually won by President Biden.Mr. Windom, who now works with Mr. Smith, also oversaw the seizure of phones from lawyers close to Mr. Trump, including John Eastman, Jeffrey Clark and Boris Epshteyn. Mike Roman, a campaign strategist who was the director of Election Day operations for the Trump campaign in 2020, also had his phone seized under Mr. Windom’s watch.Other prosecutors who now work with the special counsel began an inquiry before Mr. Smith arrived into Save America PAC, a fund-raising operation that Mr. Trump created after his loss in the election. As part of that investigation, dozens of subpoenas have been issued to companies that have received money from the PAC, including some law firms.Danny Hakim More

    • 138 Shares139 Views

      in Elections

      Misinformation Defense Worked in 2020, Up to a Point, Study Finds

      by

      Nearly 68 million Americans still visited untrustworthy websites 1.5 billion times in a month, according to Stanford researchers, causing concerns for 2024.Not long after misinformation plagued the 2016 election, journalists and content moderators scrambled to turn Americans away from untrustworthy websites before the 2020 vote.A new study suggests that, to some extent, their efforts succeeded.When Americans went to the polls in 2020, a far smaller portion had visited websites containing false and misleading narratives compared with four years earlier, according to researchers at Stanford. Although the number of such sites ballooned, the average visits among those people dropped, along with the time spent on each site.Efforts to educate people about the risk of misinformation after 2016, including content labels and media literacy training, most likely contributed to the decline, the researchers found. Their study was published on Thursday in the journal Nature Human Behaviour.“I am optimistic that the majority of the population is increasingly resilient to misinformation on the web,” said Jeff Hancock, the founding director of the Stanford Social Media Lab and the lead author of the report. “We’re getting better and better at distinguishing really problematic, bad, harmful information from what’s reliable or entertainment.”“I am optimistic that the majority of the population is increasingly resilient to misinformation on the web,” said Jeff Hancock, the lead author of the Stanford report.Ian C. Bates for The New York TimesStill, nearly 68 million people in the United States checked out websites that were not credible, visiting 1.5 billion times in a month in 2020, the researchers estimated. That included domains that are now defunct, such as theantimedia.com and obamawatcher.com. Some people in the study visited some of those sites hundreds of times.As the 2024 election approaches, the researchers worry that misinformation is evolving and splintering. Beyond web browsers, many people are exposed to conspiracy theories and extremism simply by scrolling through mobile apps such as TikTok. More dangerous content has shifted onto encrypted messaging apps with difficult-to-trace private channels, such as Telegram or WhatsApp.The boom in generative artificial intelligence, the technology behind the popular ChatGPT chatbot, has also raised alarms about deceptive images and mass-produced falsehoods.The Stanford researchers said that even limited or concentrated exposure to misinformation could have serious consequences. Baseless claims of election fraud incited a riot at the Capitol on Jan. 6, 2021. More than two years later, congressional hearings, criminal trials and defamation court cases are still addressing what happened.The Stanford researchers monitored the online activity of 1,151 adults from Oct. 2 through Nov. 9, 2020, and found that 26.2 percent visited at least one of 1,796 unreliable websites. They noted that the time frame did not include the postelection period when baseless claims of voter fraud were especially pronounced.That was down from an earlier, separate report that found that 44.3 percent of adults visited at least one of 490 problematic domains in 2016.The shrinking audience may have been influenced by attempts, including by social media companies, to mitigate misinformation, according to the researchers. They noted that 5.6 percent of the visits to untrustworthy sites in 2020 originated from Facebook, down from 15.1 percent in 2016. Email also played a smaller role in sending users to such sites in 2020.Other researchers have highlighted more ways to limit the lure of misinformation, especially around elections. The Bipartisan Policy Center suggested in a report this week that states adopt direct-to-voter texts and emails that offer vetted information.Social media companies should also do more to discourage performative outrage and so-called groupthink on their platforms — behavior that can fortify extreme subcultures and intensify polarization, said Yini Zhang, an assistant communication professor at the University at Buffalo.Professor Zhang, who published a study this month about QAnon, said tech companies should instead encourage more moderate engagement, even by renaming “like” buttons to something like “respect.”“For regular social media users, what we can do is dial back on the tribal instincts, to try to be more introspective and say: ‘I’m not going to take the bait. I’m not going to pile on my opponent,’” she said.A QAnon flag on a vehicle headed to a pro-Trump rally in October. Yini Zhang, a University of Buffalo professor who published a study about QAnon, said social media companies should encourage users to “dial back on the tribal instincts.”Brittany Greeson for The New York TimesWith next year’s presidential election looming, researchers said they are concerned about populations known to be vulnerable to misinformation, such as older people, conservatives and people who do not speak English.More than 37 percent of people older than 65 visited misinformation sites in 2020 — a far higher rate than younger groups but an improvement from 56 percent in 2016, according to the Stanford report. In 2020, 36 percent of people who supported President Donald J. Trump in the election visited at least one misinformation site, compared with nearly 18 percent of people who supported Joseph R. Biden Jr. The participants also completed a survey that included questions about their preferred candidate.Mr. Hancock said that misinformation should be taken seriously, but that its scale should not be exaggerated. The Stanford study, he said, showed that the news consumed by most Americans was not misinformation but that certain groups of people were most likely to be targeted. Treating conspiracy theories and false narratives as an ever-present, wide-reaching threat could erode the public’s trust in legitimate news sources, he said.“I still think there’s a problem, but I think it’s one that we’re dealing with and that we’re also recognizing doesn’t affect most people most of the time,” Mr. Hancock said. “If we are teaching our citizens to be skeptical of everything, then trust is undermined in all the things that we care about.” More

    • 125 Shares139 Views

      in Elections

      The Republican Strategists Who Have Carefully Planned All of This

      by

      Republican leaders are now adopting increasingly autocratic measures, using the police powers of government to impose moralized regulations, turning private citizens into enforcement officers and expelling defiant elected Democrats just as county Republican parties, particularly in western states, are electing militia members, Christian nationalists and QAnon believers to key posts.Here’s one example. Last November, the Republican Party of Clackamas County in Oregon chose a new vice chairman, Daniel Tooze, a Proud Boy from Oregon City, and Rick Riley, head of the county chapter of Take Back America, which denies the results of the 2020 presidential election, as chairman. Oregon Public Broadcasting reported that in central Oregon’s Deschutes County, the local Republican Party chose Scott Stuart, “a member of the county chapter of People’s Rights, a nationwide network of militia groups and anti-government activists founded by conservative firebrand Ammon Bundy.”In June 2022, two of my Times colleagues, Patricia Mazzei and Alan Feuer, reported that “at least a half-dozen current and former Proud Boys” had secured seats on the Miami-Dade Republican Executive Committee, including two facing criminal charges for participation in the Jan. 6 attack on the Capitol:The concerted effort by the Proud Boys to join the leadership of the party — and, in some cases, run for local office — has destabilized and dramatically reshaped the Miami-Dade Republican Party that former Gov. Jeb Bush and others built into a powerhouse nearly four decades ago, transforming it from an archetype of the strait-laced establishment to an organization roiled by internal conflict as it wrestles with forces pulling it to the hard right.“On the right, support for violence is no longer a fringe position,” Rachel Kleinfeld, a senior fellow in the Democracy, Conflict and Governance Program at the Carnegie Endowment for International Peace, wrote in a November 2022 Politico essay, “How Political Violence Went Mainstream on the Right.”Those joining violent political events like the Jan. 6 insurrection, Kleinfeld continued,are more likely to be married middle-aged men with jobs and kids. Those most likely to support violence on the right feel most connected to the Republican Party. This is not a marginal movement: It is people who see violence as a means to defend their values, an extension of their political activity.Democrats are not driving today’s political violence, Kleinfeld argued,but they are at least partly responsible for driving many people into the arms of the far right. Fear is a major cause of violence. As America undergoes immense change, from a fourth industrial revolution to remaking the concept of gender, many Americans are struggling to understand why they feel unmoored, anxious and behind. Snake-oil salesmen like Tucker Carlson offer the racist Great Replacement Theory as an explanation. Rather than provide a better story, the progressive left calls people names if they can’t march to a radically new tune fast enough. No wonder that even people of color moved in 2020 toward a right that offers understanding and a sense of community.At the same time, Republican leaders are showing a growing willingness to disempower both Democratic officials and cities run by Democrats if they defy Republican-endorsed policies on matters as diverse as immigration, abortion and gun control.The expulsion of two Black state representatives by the Republican majority in Tennessee received widespread publicity this past week (one has already been reinstated by local officials and the other may be soon). But their expulsion, as spectacular as it was, is just the most recent development in a pattern of attempts by Republicans to fire or limit the powers of elected Democrats in Florida, Mississippi, Georgia and elsewhere. This includes Gov. Ron DeSantis’s decision in August 2022 to suspend Andrew H. Warren, the elected Democratic state attorney of Hillsborough County, who had signed a statement saying he would not prosecute those who seek or provide abortions.In defiance of public opinion, 22 Republican attorneys general and 67 Republican members of the U.S. House of Representatives filed amicus briefs that called on Matthew Kacsmaryk, a Federal District Court judge in Amarillo, Texas, to invalidate the Food and Drug Administration’s 23-year-old approval of the abortion pill mifepristone, which Kacsmaryk promptly went ahead and did last week. A February Ispos poll found that by a 3 to 1 margin (65-21), American adults agree that “medication abortion should remain legal in the United States,” including a healthy plurality (49-35) of Republicans.Republicans in states across the country are defiantly pushing for the criminalization of abortion — of the procedure, of abortifacient drugs and of those who travel out of state to terminate pregnancy — despite clear evidence, in the aftermath of the Supreme Court’s decision overturning Roe v. Wade, that public opinion had shifted in favor of abortion rights.According to research provided to The Times by the Kaiser Family Foundation, states that have abortion bans at various early stages of pregnancy with no exception for rape or incest include Alabama, Arizona, Arkansas, Florida, Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, South Dakota, Tennessee, Texas, West Virginia and Wisconsin.An overwhelming majority of Americans of all political persuasions believe there should be exceptions for rape and incest. An October 2022 survey of 21,730 people by the University of Pennsylvania’s Penn Program on Opinion Research and Election Studies found overall support for these exceptions at 86-14; among Democrats at 94-6; among independents at 89-12; and among Republicans at 76-24.At least three states with Republican governors — Florida, Virginia and Texas — have adopted laws or regulations empowering private citizens to enforce restrictive policies governing abortion, sex education or the teaching of critical race theory, in some cases providing bounties for those reporting abortions.Jacob Grumbach, a political scientist at the University of Washington, argues in his 2022 book, “Laboratories Against Democracy”:When it comes to democratic backsliding in the states, the results couldn’t be clearer: over the past two decades, the Republican Party has eroded democracy in states under its control. Republican governments have gerrymandered districts, made it more difficult to vote and restricted civil liberties to a degree unprecedented since the civil rights era. It is not local changes in state-level polarization, competition or demographics driving these major changes in the rules of American democracy. Instead, it is the groups that make up the national coalition of the modern G.O.P. — the very wealthy on the one hand and those motivated by white identity politics and cultural resentment on the other.When I asked him why the Republican Party had moved in this direction over the past generation, Grumbach elaborated in an email, observing that the two major elements of the Republican Party — “extremely wealthy individuals in an era of high economic inequality” and “a voter base motivated by cultural and demographic threat” — have a “hard time winning electoral majorities on the basis of their policy agendas (a high-end tax cut agenda for the elite base and a culturally reactionary agenda for the electoral base), which increases their incentive to tweak the rules of the game to their advantage.”Pippa Norris, a political scientist at Harvard’s Kennedy School, argued in an email that contemporary cultural conservatism depends on support from declining constituencies — non-college whites (as pollsters put it), evangelical Christians and other ideologues on the right — which places these groups in an increasingly threatened position, especially in the American two-party system.“At a certain point, the arc of history, which bends toward liberalism, means that traditional values among social conservatives lose their hegemonic status,” Norris wrote, which “is eventually reflected in progressive changes in the public policy agenda evident in many postindustrial societies during the late twentieth century, from the spread of reproductive rights, equal pay for women and men, anti-sex discrimination laws, passage of same-sex marriage laws, support for the international rules-based world order based on liberal democracy, free trade, and human rights, and concern about protection against environmental and climate change.”The consequences of this long-term cultural development for the losers, Norris continued, is a buildup of “resentment at the loss of the hegemony of traditional values and identities.” The problem for the Republican Party, she observed, lies in the fact that “by appealing to their shrinking socially conservative base, the Republican Party has been unable to gain a majority of the popular vote in their bid for the White House in eight of the last nine presidential elections.”The reality, Norris wrote, is:Since the early 1980s, on issue after issue, from abortion, secular values, civil rights, racial, homosexual, and gender equality, gun control, cosmopolitanism, and environmentalism, the pool of social conservatives adopting traditional views on these moral and social identity issues has been shrinking in size within the U.S. national electorate, from majority to minority status. They are running down an up escalator.With their backs to the wall, Norris argued, conservatives have capitalized oninstitutional features of U.S. elections that allow Republicans to seek to dismantle checks on executive power — including the extreme decentralization of electoral administration to partisan officials with minimal federal regulation, partisan gerrymandering of districts, overrepresentation of rural states in the U.S. Senate and Electoral College, partisan appointments in the judiciary, primary elections rallying the faithful in the base but excluding the less mobilized moderate independents, the role of money from rich donors in elections and campaigns, and so on and so forth. The Trump presidency exacerbated these developments, but their roots are far deeper and more enduring.Nicholas Stephanopoulos, a law professor at Harvard, noted in an email “that state policy outcomes are becoming more bimodal” — liberal or conservative, rather than centrist — “than in previous eras” and that the “misalignment between public policy and public opinion is pervasive in modern American politics,” particularly in red states “where public policy is far more extreme and conservative than the public wants.”In theory, the hostility of average voters to extreme issue stances can pressure politicians to move toward the center, Stephanopoulos contended, “but this aligning impact of general elections can be reduced through tactics like gerrymandering, which make it unlikely that even large swings in public opinion will much alter the composition of the legislature.”In addition, in Stephanopoulos’s view, in a highly polarized era, the pressure to moderate in order to win general elections faces growing counter-pressure to take immoderate positions in order to win primaries:There’s little that could persuade many voters to ever support the other side. And while general elections might be aligning, they’re pitted against many misaligning forces: the views of activists and donors, the need to win the primary election to be re-elected, pressure from legislative leadership, politicians’ own often extreme ideologies, and so on. It’s no surprise that the misaligning forces are often stronger.Bruce Cain, a political scientist at Stanford, made the argument by email that “Given the clustering of communities along political, cultural, and social lines in the United States presently and the dispersion of powers in American federalism, we should expect our state and local laboratories to yield a wide dispersion of products, especially when they are given more freedom to experiment.”So why don’t all states converge on the national median, as revealed by the polls? Cain asked, and answered that “There are real public opinion differences across states and local communities, especially on hot button social issues.”Ultimately, Cain continued, “If elected officials and judges get too far out of alignment with voters, they will get the message in the form of surprising electoral outcomes, as recently occurred in Wisconsin. Democrats in the seventies and eighties experienced the same on busing, crime and welfare.”Of course, Cain cautioned, “my optimism about this assumes the Republicans do not give up on elections altogether, which is more in doubt than I ever anticipated a decade ago.”Other observers of American politics are more pessimistic. Theda Skocpol, a professor of political science and sociology at Harvard, contends that many of the developments in states controlled by Republicans are a result of careful, long-term planning by conservative strategists, particularly those in the Federalist Society, who are developing tools to build what she calls “minority authoritarianism” within the context of a nominally democratic system of government.Skocpol outlined her thinking in an email:The first-movers who figured out how to configure this new “laboratory of democratic constriction” were legal eagles in the Federalist Society and beyond, because the key structural dynamic in the current G.O.P. gallop toward minority authoritarianism is the mutual interlock between post-2010 Republican control, often supermajority control, of dozens of state legislatures and the Scotus decision in 2019 to allow even the most extreme and bizarre forms of partisan gerrymandering.These organized, richly resourced actors, she wrote,have figured out how to rig the current U.S. system of federalism and divided branches, given generational and geographic realities on the ground, and the in many ways fluky 2016 presidential election gave them what they needed to put the interlock in place. They are stoking and using the fears and resentments of about half or so of the G.O.P. popular base to undo American democracy and enhance their own power and privileges. They are doing it because they can, and they believe in what they are doing. They are America’s G.O.P. Leninists.Skocpol does not pull her punches:This situation, locked in place by a corruptly installed Supreme Court majority and by many rotten-borough judicial districts like the one in Amarillo, means that minority authoritarians, behind a bare facade of “constitutionalism,” can render majority-elected officials, including the president and many governors, officials in name only. The great thing from the minority authoritarian point of view is that those visible chief executives (and urban mayors and district attorneys) can still be blamed for government non-function and societal problems, but they cannot address them with even broadly supported measures (such as simple background checks for having military assault weapons).There are a number of factors that confirm Skocpol’s analysis.First and foremost, the Republican Party’s commitment to democratic values and procedures has been steadily eroding over the past two decades — and the momentum has accelerated. The brakes on extremism are failing, with Donald Trump gaining strength in his bid for renomination and the continuing shift to the right in states like Tennessee and Ohio.Second, in bright-red states, the embrace of far-right positions on such issues as abortion, guns, immigration and election denial is now a requirement rather than a choice for candidates seeking office. At the same time, in purple states like Arizona and Pennsylvania, a hard-right posture may be a liability in the general election, even as it is often mandatory in a primary contest.The 2024 presidential election, if it is close, will test the viability of a mainstay of Republicans’ current anti-democratic strategy: a drive to empower state legislatures to overturn election results. In August 2021, ABC News reported that eight states have enacted legislation shifting power over determining election results to legislatures or partisan boards: Arizona, Georgia, Texas, Florida, Arkansas, Kansas, Montana and Kentucky.The ability of state legislatures to determine the winners and losers of elections now hangs on the outcome of a pending Supreme Court case, Moore v. Harper, which will determine the constitutionality of a fringe legal theory promulgated by the right, the so-called independent state legislature doctrine.What’s at stake?In a 2021 essay, “Trump Is Planning a Much More Respectable Coup Next Time,” Richard Hasen, an election expert who is a law professor at U.C.L.A., wrote:A state legislature dominated by Republicans in a state won by Democrats could simply meet and declare that local administrators or courts have deviated from the legislature’s own rules, and therefore the legislature will take matters into its own hands and choose its own slate of electors.Put another way, according to Hasen:The Jan. 6 insurrection, and Trump’s actions trying to change the Electoral College votes in five states, was an attempted coup built on the Big Lie of voter fraud. But the potential coup next time will come in neatly filed legal briefs and arguments quoting Thomas Jefferson and wrapped in ancient precedents and purported constitutional textualism. It will be no less pernicious.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 113 Shares189 Views

      in Elections

      Judge Limits Fox’s Options for Defense in Dominion Trial

      by

      A Delaware judge said Fox News could not argue newsworthiness to defend airing false claims, and limited how Dominion Voting Systems could refer to the Jan. 6 attack.WILMINGTON, Del. — A judge ruled on Tuesday that Fox News could not argue that it broadcast false information about Dominion Voting Systems on the basis that the allegations were newsworthy, limiting a key line of defense for the network as it faces the beginning of a potentially costly defamation trial next week.The judge, Eric M. Davis of Delaware Superior Court, also ruled that Dominion could not refer to the Jan. 6, 2021, assault on the Capitol except in very narrow circumstances, saying he did not want jurors to be prejudiced by events that weren’t relevant to the central question in the case: Did Fox air wild claims about Dominion’s purported involvement in a conspiracy to steal the 2020 presidential election from Donald J. Trump knowing that they were lies?In the first of two days of pretrial hearings, Judge Davis set many of the parameters that will govern how the trial is run, including what kinds of arguments the 12-person jury can hear and what questions lawyers may ask during jury selection to weed out those they believe would not be impartial.The hearing covered matters large and seemingly small, from the application of the First Amendment to how jurors may take notes.Judge Davis said he would allow lawyers to ask potential jurors about their cable news viewing habits and whether they watched Fox News programs — or intentionally avoided them. He will not, however, permit questions about how someone voted.In another ruling, the judge denied a motion from Dominion that sought to limit how Fox lawyers could invoke the First Amendment, leaving the network with some space to argue that the Constitution shields it from liability.The lawsuit, in which Dominion is seeking $1.6 billion in damages, is teeing up a major test of the First Amendment and, depending on the outcome, could renew questions about whether defamation law adequately protects victims of misinformation campaigns.While legal experts have said Dominion’s case is unusually strong, defamation suits are extremely difficult to win because the law essentially requires proof of the defendants’ state of mind. Dominion’s burden will be to convince a jury that people inside Fox acted with actual malice, meaning either that they knew the allegations they broadcast were false but did so anyway, or that they acted so recklessly they overlooked facts that would have proved them wrong.Fox has argued that while it understood many of the claims made by its guests about Dominion were false, they were still worth covering as inherently newsworthy. Fox’s lawyers have taken the position that there is nothing more newsworthy than claims by a former president of the United States that an election wasn’t credible.Judge Eric M. Davis said he would allow lawyers to ask potential jurors about their cable news viewing habits and whether they watched Fox News programs.John Taggart for The New York TimesBut Judge Davis disagreed.“Just because someone is newsworthy doesn’t mean you can defame someone,” he said, referring to pro-Trump lawyers like Sidney Powell and Rudolph W. Giuliani, who appeared repeatedly on Fox News and Fox Business in the weeks after the 2020 election and linked Dominion to various conspiracy theories.The judge admonished Fox’s lawyers, saying they cannot make the argument that the false statements about Dominion came from guests like Ms. Powell and not from Fox hosts. That argument is irrelevant, he said, because the fact remains that Fox is responsible as the broadcaster.Sidney Powell and Rudolph W. Giuliani. The pro-Trump lawyers appeared repeatedly on Fox News and Fox Business in the weeks after the 2020 election and linked Dominion to various conspiracy theories.Jacquelyn Martin/Associated Press“It’s a publication issue, not a who-said-it issue,” he said.Dan K. Webb, a lawyer representing Fox, explained that hosts would testify that they weren’t certain about the truth of the allegations but covered them because the former president and his lawyers said they could prove them.“The hosts will say during that time period, 15, 20 days, they were careful not to repeat the allegation,” Mr. Webb said.Judge Davis responded, “Just because they say it, doesn’t mean it’s true.”It was not the only tense exchange between the judge and Fox lawyers on Tuesday. At one point, a lawyer for Dominion, Justin Nelson, informed Judge Davis that Fox had disclosed only within the last 48 hours that Rupert Murdoch, whose family controls the Fox media empire, had a larger role in Fox News than the company had initially let on.By not acknowledging the extent of Mr. Murdoch’s responsibility for Fox News, the personal communications of his that Dominion could review were “significantly more limited,” Mr. Nelson said.Judge Davis was not pleased. “This is a problem,” he said. “I need to feel comfortable that when you represent something to me that it’s true,” he added.Fox has also made the argument that its actions were not defamatory because many hosts and guests said on the air that there was a lack of convincing evidence that suggested widespread voter fraud.Judge Davis rejected this position, too.“You can’t absolve yourself of defamation by merely putting somebody on at another time to say something different,” he said.In asking for such a large settlement against Fox, Dominion has cited the death threats its employees have received. People have shown up outside its Denver headquarters armed and left voice mail messages threatening to blow up its offices.Judge Davis on Tuesday limited how Dominion can refer to those threats in front of jurors, ruling that it may not mention specific content. He said he did not want to leave jurors with the impression that Fox was responsible for the actions of third parties.The trial begins on Monday, with jury selection expected to wrap up by the end of this week.Before Tuesday, the judge had already ruled that Dominion could compel several high-profile Fox executives and hosts to testify in person, including Mr. Murdoch; Suzanne Scott, the chief executive of Fox News Media; and the Fox News personalities Tucker Carlson, Sean Hannity and Jeanine Pirro. More