Why Fox Will Settle the Dominion Case
And why that’s okay
Welcome to Second Rough Draft, a newsletter about journalism in our time, how it (often its business) is evolving, and the challenges it faces. This week’s edition is publishing early to accommodate travel tomorrow.
In just the second edition of this newsletter, more than two years ago, I cautioned against rooting too hard for Dominion Voting Systems in its libel case against Fox News and staff there over bogus allegations of problems with Dominion’s voting machines in 2020. My main point was that under our system (since 1964) of heavily constitutionalized defamation law, arguments on behalf of plaintiffs in egregious cases can come back to haunt the rest of us in more workaday situations. That’s still true.
But as the April 17 trial date nears for the case, and as the evidence developed in discovery is revealed, I think it’s become pretty clear that the matter is likely to be settled before trial, with a huge payment from Fox (hundreds of millions of dollars)— and that this should be seen as an acceptable result from pretty much every perspective. I want this week to explain why.
Why Dominion Should Settle
Dominion should settle primarily because, while they are very likely to win the case, upholding the verdict after trial would take years, and would entail some risk, especially in the reduction of any award.
Beyond that, Dominion has proved its points: there were no significant flaws in their voting machines in 2020, those machines tallied the votes accurately in the states where they were employed-- about half of all states. (Those states, by the way, included the crucial swing states won by Biden by smaller margins than polls had suggested, but also Florida, Iowa and Ohio, where Trump also overperformed against the polls, winning by wider-than-expected margins).
Most of all, Dominion has proved the hardest part of its case, that Fox not only repeatedly broadcast untruths in the days and weeks after the election, but that it did so knowingly, and for the base motive of pandering to viewers, especially as some defected to rival networks, and thus preserving profits.
Disgracefully, those at Fox who we now know, at one time or another, wanted to place commercial or political considerations ahead of telling viewers the truth included not only Rupert and Lachlan Murdoch, Tucker Carlson, Sean Hannity, Laura Ingraham, Maria Bartiromo and Lou Dobbs—about whom no one should have had any illusions—but also, sadly, Bret Baier, Martha MacCallum and even Chris Wallace, each of whom once knew better.
Fox and its minions may deny this until the cows come home, but paying a nine-figure settlement—grossly in excess of either any insured amount or worst-case legal fees (or both)—should be seen as an admission of guilt by any reasonable observer.
Why Fox Should Settle
Fox should settle because, however large the negotiated amount, there will always be a chance that a trial verdict could be larger. Dominion, as I noted two years ago, is the nightmare plaintiff: a company that sustained real damage to its business, and can probably prove that to a jury’s satisfaction. Nor would the courts be likely to come to Fox’s rescue after a trial. The judges most sympathetic to Fox are generally also those who want to make it easier for libel plaintiffs. Fox’s legal theory—protection for “neutral reportage” of statements by newsmakers—has enjoyed limited judicial support since being most clearly annunciated more than 45 years ago, and is dramatically undermined here by the fact that Trump & Co. were, we now know, understood by Murdoch and others to be making the statements in question in bad faith.
Beyond this, and most important, a trial would force Fox to publicly and repeatedly make clear its own position in the case: that Trump’s Big Lie is just that, that Biden freely and fairly won the election, and that Dominion’s vote tallies were accurate. What we learned from the discovery in this case is how badly Fox does not want to have to confront its audience with that reality. Yet, at a trial, it would have no choice: it has conceded that many statements it made were false (in legal terms it concedes “falsity” but disputes “fault”), and cannot now argue that they were true.
In reporting so far on the testimony and documents revealed in the case, the focus has been on whether Fox believed in the nonsense it was putting on the air. But at a trial each of its leading figures would be compelled to say, over and over again, that it indeed turns out to have been nonsense, that Biden got more votes in the swing states, that the machine counts were correct. We already know Fox is desperate not to have to say this for fear Trump might then steer viewers elsewhere again. In addition, the revelations from discovery that have so far been redacted from public filings (at Fox’s insistence) would be revealed at trial.
Why a Settlement Should Be Okay With the Rest of Us
Libel law in this country remains more protective of a free press than that almost anywhere else in the world. The major exception is that the law-- the Constitution, that is-- does not protect lies, knowing falsehoods. On the record that has been developed by Dominion, it will not weaken a free press to allow the punishment of Fox in this case any more than the protection of erotic art is weakened by the punishment of child pornography.
As already noted, the size of any settlement should be large enough to render laughable any subsequent claim by Fox or its staff that they behaved professionally.
Most significantly for our democracy, such a settlement by Murdoch and Fox would help mute claims, at least through their often-poisonous channels, and especially over the remaining 19 months of the 2024 presidential campaign, about who received the most votes in the previous contest. Fox won’t want to make the same mistake again.
Second Rough Draft is taking next week off. See you likely at the end of the month.
Good column Dick. Here are a few reasons you might be wrong. First, Fox will insist on confidentiality and no admission of liability, both of which will be unacceptable to Dominion as they would defeat its goals in bringing the lawsuit. Second, Dominion doesn’t need the money but does need to remove the tarnish Fox has administered to Dominion’s reputation. Third, Dominion can easily prove that Fox “knew” it was publishing false information and this is the most difficult element of a public defamation claim. Fourth, and admittedly a peon to our fondness for underdogs and fairness, Dominion won’t pass up the chance to publicly bloody the nose of the loudmouth town bully.
As someone who spent 40 years with community newspapers, I would only be OK with a settlement if Fox has to repeatedly tell its audience in prime time that it lied and that it hosts lied about what it was reporting. Their viewers probably won’t believe them, but it would make me feel better.