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c-span as a public service. along with these other television providers. giving you a front row seat to democracy. washington journal c. host: we are back with catherine ross, a law professor at george washington university. we are going to discuss dominion voting system's lawsuit against fox news. good morning. guest: thank you for inviting me. host: thank you for joining us. let's start with the status of the case. there was an update over the weekend. we thought the trial was going to start today but that is no longer the case. guest: the party is resumed

settlement talks which had broken off in december. while it is common for cases to settle on the courthouse steps on the eve of trial, there was no reason for dominion to want to settle this case, it had such a strong case. with preliminary skirmishes and decisions the judge made, fox has in norma's incentive to settle and enormous risk if it moves forward with the trial. i would suspect they may be motivated -- this is speculation -- to make a serious settlement offer. any time you go to a jury, no matter how strong your case, there is a risk that one juror will vote the other way. and dominion runs the risk that

a strong verdict and big damages could be reversed in the appellate court or tied up for years. it given that andy -- and the judge's unhappiness with the fox lawyers, it is possible they will settle. host: i want to give our viewers the number to call so they can ask questions about the trial or related issues or share their thoughts on the case. republicans, (202) 748-8001. democrats, (202) 748-8000. independents, (202) 748-8002. you can start calling now and we will get to those calls in a moment. is this case unusual? we are talking about a private company suing arguably the

biggest cable news network. is there much precedent for what we are seeing unfold? guest: there is no precedent both in terms of the parties but more importantly, the almost unimaginable facts and what we have seen in discovery. this is by far the strongest case i have ever seen for defamation under the very stringent standard created in new york times versus sullivan to protect the news media, to put the first amendment over traditional defamation law in which you only had to show there was a falsehood. here, they are protected unless they proceeded with what is called actual malice that is something very different when we use it in conversation. host: talk more about the

standard of malice. that is the precedent that was set in the new york times versus sullivan case. we have a little bit of an overview of that. the landmark case, which held in 1964 that if a plaintiff in a defamation suit is a public figure, particularly a public official or candidate for public office, he or she must meet the higher standard of proving actual malice in order to make their case. how does that apply to what we are seeing in dominion voting system's v fox news? guest: first, the concept of a public figure has expanded. but under new york law which applies here, the public figure standard applies. even though this is in a

delaware court, it is applying the laws of defamation in new york. actual malice says the person who published the falsehood either knew the statement was false or behaved with reckless disregard of the truth. meaning they had reason to suspect that it could be false and did nothing to follow-up and find out. we learned in discovery that fox had internal fact checkers and expressly said we don't want to hear the facts from you. it is not good for our business model. i am paraphrasing of course. but that is a strong indicator among all of the emails and behind-the-scenes commit occasion and the testimony and depositions that the speakers at

fox and the network officials who published these falsehoods knew that the statements were not true. host: i am going to read a quote. this is an article the hill wrote where you were quoted. you said it fox does not appear to have any plausible defense in light of what dominion uncovered in discovery of real-time knowledge of falsities. i wanted to ask before we take calls. does dominion have any instances to settle? --incentives to settle? fox may have some because their case might not be strong but does dominion have incentive to settle? guest: they have very limited

incentive to settle. they have an important point to make in this case in addition to wanting the damages. they will make the point most clearly with a trial. the point they need to make is that they are reliable so that they don't lose contracts moving forward. that is the harm to their business. there will of course be competing testimony about how much they have been harmed in terms of dollar amount. but there is no question that they have suffered reputational and business harm. host: let's go to the phone lines. mario in new york on the republican line, what is your comment? caller: how come c-span is not carrying the dish area committees in new york city today? host: that is off-topic but you can go to c-span.org or the c-span now app. we are streami t judiciary

hearing live. it is scheduled to start at 9:00 a.m. eastern time. on the topic at hand, dominion voting system's v fox, dave in florida on the democratic line. what would you like to ask? caller: you know, the thing is i think we need more regulations in news and information. if you put out bottles of a medicine that were mislabeled, they drag you into a criminal court and put you in jail. but this company, fox news has been getting away with labeling their products news for over 30 years and it is not news. it is simply propaganda, lies packaged up, and echo chamber for some of the less informed people in the world to parent lines at each other. that is all they do is sell

lines. murdoch personally confessed to these facts. he said in deposition, it is not about lou or read. it is about green. not even a basic single celled organism can survive without access to facts, truths and accurate data. even a virus, in order to mutate, has to operate on actual data. but fox news has been able to spew lines of toxic propaganda and absolute bs into the public consciousness of this country for 30 years. it is operated by a foreign alien, rupert murdoch who slithered in and made himself a billionaire on being able to call and dupe some of the most

uninformed people in the world. this is been going on -- host: let's let our guest respond. guest: there was a question at the beginning which is important and that is why can't the government regulate the media to get rid of this information and lies? that is really the central theme of my book, the right to lie. that is because the government, if it were to regulate what is true and what is untrue would be a sensor. -- censor. many courts have compared this to 1984 and talking about what happens when the government decides what you can and can't say based on the government's assessment of truth. that is an almost impossible undertaking, the whole point of the first amendment, that we the

citizens are supposed to hear a variety of ideas and interpretations of facts and decide for ourselves what is true and false. that said, i want to add the judge in the dominion versus fox case went through each of the more than 130 instances of falsehoods that the dominion company listed in its complaint and concluded that each and every one of those statements that appeared on fox was false. he used capital letters and there is nothing for the jury to decide about whether it was true or false, it is false. it is very different from the government, meaning the executive branch, through

regulation and enforcement, tells people you can't say that, it is false. host: let's take another caller. mary lou in connecticut on the independent line. go ahead. caller: listen, i don't know about the dominion case but i live in connecticut. i have been here, my first vote was in 1962. i have gone to the same polling place every single time of the election since then. i went to the election and polling place this time, the same one. i walked in the door, hand them my license and they said we don't need that. i said you don't need it? no, we don't. i said do you want to know where i live? ok. i said on willard avenue.

ok, we got that, get your ballot. i live in a rooming house that has nine apartments in it. they could not have known who was voting from that house. do you think that that was a real election? the election in 2020 was affixed. i live in connecticut where blumenthal, murphy and all of them are democrats and very seldom do the republicans get in. but i'm telling you, my first vote was for eisenhower. host: this caller believes the election was fixed. believes what fox news and others have said. what are your thoughts? guest: sure. in most jurisdictions you need to sign the voter book and they look at your signature and see if there is a disparity.

so they did some sort of check. we have had report after report of official agencies, and you may not question them, but under the trump administration, federal officials, we have had audits in numerous states, many lawsuits. and each instance the factual outcome was that the election was fair. where there any instances of fraudulent voting? a handful. in almost all of them by republicans. but the phrase that everybody used was not in sufficient numbers to affect the outcome. this was not a stolen election. we had more evidence than we have ever had before because of the challenges the republicans brought. so you should be able to sleep easy. host: on a related note, we had

a color in a previous segment who wanted me to ask you, why is there not a universal system for voting, making it consistent nationwide? guest: wonderful question. because the constitution gives the power to conduct elections to the state governments. that is part of our federal system. it would be possible of course for the states to all agree to do it in one way. but they don't have to. host: let's go back to the phone lines. on the republican line, don from lancaster county, pennsylvania. caller: yeah, i am a hunter and the last election in 2020, i left the house at about 2:00 in the morning and all of the swing states, pennsylvania, georgia,

all of those states. i live in pennsylvania. there were only 10% of the votes left. the only way trump was going to lose pennsylvania is if biden got all of the votes. eight that amazing that all the votes -- ain't that amazing that all the votes were provided? we talked about fox news being fair and for republicans, let's get our heads out of the sand. most of the people in this country think that 2020 elections were rigged and they did what they had to do to beat trump. we don't stop doing trump. he is not even in office and we are still going after him. he was the greatest thing in this country for the last 40 years. if she's going to sit there and lie and say that dominion voting machines were not rigged, she is

full of it. host: can you respond to those who have concerns about how those later votes tend to trend toward democratic candidates? guest: sure. and this is a little beyond my area of expertise but is something i have followed closely. one reason might well be a -- and it is true in many states -- that it depends on the geographical area the votes come from and where they are counted. we watched through trends coming election night, often a particular county or city reports later than other parts of the state. we live in pretty segregated silos right now in this country. so the zip codes that are coming in late are let's say 90%

one-party, it won't be surprising that most of those votes took one way. host: let's take another. sandy in katy, texas on the democratic line. caller: thank you for taking my call and good morning. i wanted to say that freedom of speech does not mean freedom from consequences. i am glad that fox news is getting what they deserve after all of the misinformation they have put out. the election process itself is broken because of the electoral college system. how are there presidents who have been elected through the electoral college system but not the popular vote? like bush and trump, they did not win the republican -- the popular vote. that is all have to say.

guest: thank you. you're right, the electoral college was designed to give smaller states more power and today we have a greater disparity in where the population is based compared to the geographic spread so the electoral college can very easily tilt away from who won the popular vote. that would require a constitutional amendment to change. it is very unlikely that we could achieve such a change. in addition we have problems beyond the theme of this segment, that we have real problems with voter suspect -- voter suppression and gerrymandering that makes it impossible to put congressional -- flip congressional seats. those are hurting our democracy. host: alan in ohio is calling on

the independent line. caller: i would like to take your attention back in number of years ago to a program started called war of the worlds. this relates to what we are dealing with now. in the fact that after the aftermath they came up with rules and regulations from the fcc that made it illegal for any news media to report something falsely. that that would be wrong to do and illegal. that is something the government presented. there was a phrase coined back then called false radio. trump comes up with false news. it is accurate with a lot of publications done through the country by different companies. i take my hat off to c-span because i have seen them refer to articles