It was over before it started. A newly assembled jury — and a mob of reporters — paused for lunch to await a six-week trial, only to find that the parties had reached a settlement. The price tag? A whopping $787.5 million dollars.
The deal ends a legal battle that began in March 2021 when Dominion sued Fox News for $1.6 billion alleging the cable channel knowingly amplified “radioactive untruths” about election fraud by Donald Trump and his supporters. Internal Fox News documents obtained by Dominion revealed panic over the loss of the MAGA audience after Trump’s defeat. Business leaders chose to undermine the credibility of the US election rather than risk the anger of viewers.
I insisted from the start that this case was destined for a settlement. Fox News had too much to lose and Dominion too much to gain. But the case persisted and stumbled on despite Judge Davis’s lash out from Fox’s legal defense weeks earlier. If a judge calls your evidence “crystal clear,” you’ll get cartoon dollar signs in your eyes as the plaintiff’s attorney.
Considering gale force winds were in the sails, it’s unlikely Dominion blinked at first. I’ll leave it to others to speculate why Fox softened at the last minute, but quietly a week earlier organized a defamation lawsuit for electoral fraud involving a Venezuelan businessman, indicating it was more flexible than firm — if the price was right.
Prior to the settlement, the network’s approach to the case was inaccurate. If $787.5 million was on the table now, it was certainly a year ago. Fox’s inability to see the writing on the wall led to the disclosure of hundreds of embarrassing texts and emails to the public. It was a loser from the start, and as First Amendment scholar Matthew Schafer meantnot even a particularly interesting one from a legal perspective.
There is a legal saw: “If you don’t have good facts, pound the law. If you don’t have a good law, pound the facts. If you don’t have either, pound the lectern.” Fox spent most of the past two years slamming the lectern, howling that “the fundamental right to a free press is at stake,” while the rest of the media yawned.
Even after brushing up on enough dough to reportedly buy out Bill O’Reilly 31 times the network had the nerve to crow: “This settlement reflects Fox’s continued commitment to the highest journalistic standards.” Reader, be careful not to roll your eyes so hard that they get stuck.
It’s fair to be disappointed that Fox wasn’t forced to apologize on-air. But if you’re seeking justice in a US court, you’ve come to the wrong place. The civil justice system, like love, means you never have to say sorry. Courts make plaintiffs sane with one thing: money. So while Dominion didn’t go one step further and give audiences six weeks of primetime Fox humiliation, money talks. Dominion would have been foolish to reject that offer and has every right to demand justice. As I’ve said before, personal injury lawyers may be the heroes we deserve, but unfortunately they’re not the ones we need right now.
Besides, Fox News isn’t out of the woods yet. It faces an equally daunting lawsuit in New York brought by another voice technology company, Smartmatic, about which it said even crazier things. Plus lawsuits for investors. The Dominion case was like a fullback punching a hole in Fox’s defense for future litigants to run through. If it was willing to pay 787.5 million not to go on trial with Dominion, imagine what it might spend to fend off the rest of the plaintiffs – better keep that checkbook handy, Rupert.
There is also the potential for another lawsuit between Fox News and its insurers. We won’t know for sure how much of the Dominion bill the company pays itself until it appears in an earnings report filed with the SEC, but usually companies pay high premiums for policies designed to cover legal damages. Unsurprisingly, insurers aren’t exactly thrilled about paying out these claims, often claiming that the situation is out of the policy for some reason. (See both Gawker’s slam by Hulk Hogan and the beef over ABC’s “pink slime” cover.)
Ultimately, the decision to settle the Dominion dispute probably reflects Fox’s main concern being the harm to its brand, not its coffers.
The game Fox News has been playing for the past few years is to have one strategy on TV and the other in court, similar to the kayfabe in pro wrestling. When Tucker Carlson accused Karen McDougal of extorting Trump, the network defeated a libel suit by claiming his show was not factual. The case was dismissed before any documents or testimony could be obtained, allowing Tucker and Fox to maintain their facade. WWE wrestlers like Hulk Hogan (real name: Terry Bolea) used to go to great lengths never to let viewers see them as their real selves, to the point where Bolea had to explain to a jury why Hulk has a larger penis than Terry (referring to an interview he gave in character) in his invasion of privacy case against Gawker Media. Fox has always said “we’re the real news,” but like pro wrestling, the talent behaves differently when they’re off the clock. This case tested the entire building of cable news kayfabe. Fox News viewers are not cut off from the internet. Once the fourth wall is broken, you can’t get it back.
With an estimated $4 billion in cash on hand, these lawsuits are financially viable even without insurance. However, losing the MAGA audience is an existential threat.
Daniel Novack is a publishing attorney and chairman of the New York State Bar Association Committee on Media Law.
