It’s all over except spinning.
At eleven o’clock, after the jury had been sworn in and the lawyers were ready to give their opening statements, the Dominion voting systems against Fox News announced on April 18, 2023 that the “parties have resolved the matter.”
Little is known about the reported $787.5 million settlement, one of the largest known slander prices in the country’s history. Fox issued a vaguely worded statement affirming the merits of Dominion’s defamation claims – “We recognize the rulings of the Court finding that certain claims about Dominion are false” – but was not required to make on-air excuses or corrections. This ended the lawsuit that attracted public attention for two years.
That’s what Dominion claims Fox and its on-air experts had damaged the company’s reputation for voting equipment by falsely questioning the integrity of its activities during the 2020 election were the same essential allegations that any libel plaintiff must make in order to bring a case to trial. The issue is not just the truth, but whether false statements damaged the plaintiff’s reputation and whether the news organization was guilty of publishing those statements.
Chairing Judge Eric Davis had already ruled that the many accusations that Fox hosts and guests hurled at them Lordship after the 2020 election — specifically that it swapped former President Donald Trump’s votes for challenger Joe Biden — was incorrect under the law. It was “CRYSTAL clear,” he wrote. All that was left for a jury to decide was whether the statements were made with genuine malice.
Actual malice is the legal standard established by the Supreme Court in 1964 New York Times v. Sullivan that applies to civil servants and public figures. In most cases, companies like Dominion that offer goods or services for sale are also considered public figures, as the Supreme Court ruled in 1984 at Bose Corp. v. Consumer Association.
In these cases, companies must prove that the statements about their companies were published with the knowledge that they are false, or with reckless disregard for whether they were true or not. The Supreme Court’s rationale in New York Times v. Sullivan, involving an Alabama police commissioner dissatisfied with media coverage of the civil rights movement, was that powerful individuals should not file frivolous lawsuits to silence the press. to justify their reputation.
As a scholar of media ethics and law, I have closely followed Dominion’s defamation suit against Fox News because it posed a direct threat to the Sullivan Standard, which has protected journalists and authors from lawsuits brought by the U.S. for nearly 60 years. are tightened politicians, sheriffs, international arms dealers, political agents and many others who would attempt to penalize and curtail robust coverage of them and their activities.
The facts were on Dominion’s side
Dominion had a huge advantage on the eve of the trial. The discovery in the process revealed a trail of text and email messages that the doubts from executives, editors and pundits at Fox about the veracity of the allegations of a conspiracy to steal the 2020 election, of which Dominion was supposedly an integral part.
They showed that while Fox fact-checkers operating in its own “brain room” had debunked many of these claims as early as November 20, 2020, Fox hosts continued to invite guests like Trump lawyers Sidney Powell and Rudy Giuliani, who stuck to their theory of a massive conspiracy to steal the Trump presidency. And it turned out that the motivation for these decisions was to try to retain viewers once they heard Fox calls out the state of Arizona for Biden, temporarily decamped to other conservative news outlets like OANN and Newsmax amplifying their favorite story rather than challenging it.
So things weren’t looking good for Fox, and that was before the parade of high-profile witnesses ranging from Fox Corp. chairman Rupert Murdoch to hosts like Maria Bartiromo, Tucker Carlson and Sean Hannity was expected. forced to take the witness stand and cross-examine. Dominion’s lawyers were no doubt about to conjure up the legendary Watergate hearings question – “What did (the president) know and when did he know it?” And Fox’s institutional integrity would be at stake, as would that of its experts.
After the settlement was made public, Dominion claimed vindication of his reputation by stating that “truth matters” and that “that our democracy will last another 250 years … we must share a commitment to facts.
For his part, Fox grudgingly admitted that it had to”acknowledge the Court’s rulings that certain claims about Dominion are falsebut added that the settlement was truly something of a win, as it “reflects Fox’s continued commitment to the highest journalistic standards.”
I hear the cynical laughter of many who think that Fox has no journalistic standards whatsoever. Those critics must be appalled that Fox and its employees will not be raked over the coals and otherwise humiliated in the court of public opinion, as well as in court.
Disinformation was central to the case
But those who are disappointed may have sought more out of this case than a libel suit can get. For many, it had become a surrogate for their misfortune — or even incandescent anger — aimed at Fox for its editorial stances. It was a referendum not only on Fox’s coverage of Dominion, but on the longstanding pattern of proponent of one political point of view above all others, even at the cost of telling the truth. In other words, it was about disinformation and the people who are persuaded by it.
Many people want to ban disinformation. But who determines what disinformation is? Under US law, we do not ask government tribunals to determine “the truth.” I’ve written about how experience in other countries that it is dangerous to ask courts, or any government agency, to do this.
If that sounds unlikely, consider that it wasn’t that long ago when Donald Trump, when he was still a candidate, called news outlets like CNN and The New York Times: “fake news.” He wanted “open the libel lawsand threatened to close these outlets. When the government decides which media sources are ‘real’ or ‘fake’, a free press – and freedom of speech as we know it – ceases to exist. As the the late Supreme Court Justice Robert Jackson wrote in West Virginia State Board of Education v. Barnette in 1943: “If there is a fixed star in our constitutional constellation, it is that no official, high or small, can prescribe what will be orthodox in matters of politics, nationalism, religion, or other matters of opinion.” That means that the law tolerates errors in journalism – which are unavoidable – as part of the search for truth.
I don’t have an assignment for Fox. But if the Dominion case had gone to jury, the inevitable appeal of whoever lost would give the Supreme Court a chance to rethink and possibly overturn the New York Times v. Sullivan standard, which protects all news media of all political affiliations. delete. At least two judges, Clarence Thomas and Neil Gorsuch have indicated they are eager to do just that, even though it has been the constitutional norm for nearly 60 years. Given this court’s willingness to reverse precedent, as it did with abortion rightsthere is no guarantee that another three judges will not join them.
Ultimately, this lawsuit was about two questions: Fox knowingly published false statements about Dominion that damaged the company’s reputation, and did it do so knowing or having reason to know that they were false? It has already vindicated Dominion and exposed Fox’s questionable practices to the public. Everything else will have to wait for another day, which may come sooner than we think. Smartmatic, which builds electronic voting systems, has a libel lawsuit against Fox and is ready to continue the fight.