The wording discrepancy may have been highly negotiated, but the message is clear: Fox admits it
The sum of $787.5 million would be no easy thing to surrender, not even for Fox News, Rupert Murdoch’s cable TV cash cow. But what the news network was forced to say after settling Dominion Voting Systems’ $1.6 billion defamation lawsuit Tuesday — acknowledging “certain claims about Dominion to be false” — was surely a point of intense debate in those 11th-hour negotiations.
The second sentence of the one-paragraph post-settlement statement was the network’s only hint of contrition, and was not nearly as starkly as Dominion put it: Fox lied.
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“Fox has admitted to telling lies,” Dominion CEO John Poulos said in his company’s official response. Added company lawyer Justin Nelson, speaking outside of court: “Lies have consequences.”
You’ll never catch Fox News using the “L” word — but you can bet $787.5 million that Dominion was explicitly given the OK to do so.
One thing Fox viewers will not see from those talks is an on-air apology or retraction of any kind broadcast on Fox News, according to CNN’s Oliver Darcy. Fox has defended its reputation with an infamous ferocity going back to its founding in 1996, so any on-air apology would have been a major, if not unprecedented, concession. And when asked at the post-settlement press conference whether Fox CEO Murdoch apologized, Dominion attorneys demurred.
But even the most mutually agreeable settlements have winners and losers.
Legal experts told TheWrap that while a trial may have been bruising for Fox and bitterly divisive for the nation’s consumers of news, it would have helped to cleanse much of the lingering stink from Fox’s graveyard of debunked reports about the 2020 presidential election, which some people, including at least one former president, still profess to believe.
“This is a huge victory for Dominion, but somewhat less of a victory for the American people who have been lied to by Fox and others about the integrity and fairness of the 2020 presidential election,” UCLA law professor Richard Hasen said. “Fox helped spread the false and dangerous claims… that caused millions of people to lose faith in the fairness of American elections. Dominion walks away with hundreds of millions of dollars, but the full reckoning for Fox’s conduct will not come today.”
It certainly might have, had a trial gone forward another day or two.
Murdoch was scheduled to be among the first in the Delaware witness box, a seat for which the Fox Corp. chairman has a deep and demonstrated distaste. Following the mid-2000s phone hacking scandal at News of the World, Murdoch said that going to court, taking the stand and testifying before a jury was the “most humiliating moment” in his life, and a permanent hit to his legacy. Surely Murdoch became more pro-settlement as his turn under the hot lights of the Delaware Superior Court drew near.
Fox had already suffered a torrent of embarrassment from Dominion’s discovery and deposition documents, which it released during weeks of summary-judgment arguments. Texts, emails and interviews with Fox brass and top hosts like Tucker Carlson and Sean Hannity revealed that network leaders were privately aghast at what was being said on air about the election and voting machines, but continued to help keep the narrative afloat as long as it was boosting ratings.
But for $787.5 million and one mealy-mouthed sentence of concession, Murdoch, now in his 92nd year, bought much more than his own creature comforts. Saying “We acknowledge the Court’s rulings” is a far, far less painful path than the one laid out by Dominion lawyers, who were already homing in on the “actual malice” standard for defamation, which includes knowingly spreading damaging falsehoods.
It was Murdoch’s own deposition in which he admitted that Fox News hosts had “endorsed” the stolen-election narrative on the air, despite their private skepticism. A settlement avoids what would have been weeks of testimony with the power to crush Fox’s journalistic integrity, perhaps even among its most loyal viewers.
“This settlement reflects Fox’s continued commitment to the highest journalistic standards,” the network concluded in its statement, with no hint of irony. “We are hopeful that our decision to resolve this dispute with Dominion amicably, instead of the acrimony of a divisive trial, allows the country to move forward from these issues.”
Fair enough. Balanced, maybe.
As for Dominion, the Denver-based company had more than enough cause to settle for roughly half of what it originally sought in a case filed for $1.6 billion in damages. Its public flaying of Fox’s reputation has already gone a long way toward repairing its own, one of the aims of any defamation action. And three-quarters of a billion dollars can build a lot of electronic ballot-counters.
Dominion’s case, while strong by nearly every expert’s measure, was no slam dunk. Defamation cases are still hard to prove in the United States (so much for this case having any impact on New York Times v. Sullivan) and juries are always a toss-up. Fox could have muddied the waters about who at the network is really responsible for editorial decisions, what’s newsworthy, and whether the company at large should be held responsible.
And Fox still must face down more damaging lawsuits, most immediately a $2.7 billion lawsuit brought by Smartmatic, which also produces voting machines. It too has teed up a lawsuit over false claims made about the 2020 election.
“Dominion would have had to prove by clear and convincing evidence that Fox knew that what it had broadcast was false and that Fox knew it was false when broadcast,” University of Virginia law professor Fred Schauer told TheWrap. “Given what was revealed in discovery and widely reported, it was clear that various important people at Fox knew of the falsity at the time of broadcasting. Whether these were the relevant people to establish knowledge by Fox as a corporation is a tricky issue about which the law is not entirely clear.”
Fox also seemed poised to pounce on Dominion’s $1.6 billion damages ask, claiming it would show in court that its voting-machines business was healthy and with great future prospects, and that people at the company viewed the lawsuit as a huge money-making opportunity.
“Given disputes over the actual amount of damages, it is not surprising that Dominion was willing to take what is plainly a great deal of money,” Schauer said. “Plaintiffs routinely claim damages greater than they are willing to accept, so this settlement looks sensible from both sides.”
Loree Seitz contributed reporting to this story.