Dominion didn’t need a trial for a victory over Fox

Fox News will pay $787.5 million to Dominion Voting Systems to settle a defamation lawsuit that was just about to go to trial. While technically not a win for Dominion, it’s hard to see the settlement any other way.

A trial would have been historic, putting some of Fox News’s most high-profile figures—both on-air and behind-the-scenes—on the witness stand to demonstrate whether or not they acted with reckless disregard while airing false statements that Dominion’s voting machines were rigged in favor of Joe Biden and against Donald Trump in the 2020 US presidential election.

Settlements are not admissions of guilt, but in this case Fox waved the white flag before it could have the chance for a formal courtroom defeat, before it could be held liable for Dominion’s $1.6 billion in desired damages, and—perhaps most importantly—before it could incur additional embarrassment.

“I think it would be hard to look at anyone receiving $787 million and say it wasn’t a victory,” said Jeff Kosseff, a law professor at the US Naval Academy.

Fox looked to be meeting the high bar for actual malice

Even the pre-trial process was brutal for Fox. Court filings showed that Fox executives and hosts were aware that the claims about Dominion were false, but reported them anyway.

“Sidney Powell is lying by the way. I caught her. It’s insane,” Fox primetime anchor Tucker Carlson wrote in a text message to fellow host Laura Ingraham on Nov. 18, 2020.

Ingraham agreed, calling Powell, a Trump lawyer, a “complete nut” in response.

“Our viewers are good people and they believe it,” Carlson wrote.

The judge in the case, Eric M. Davis of the Delaware Superior Court, ruled even before the trial that Fox’s statements about Dominion—offered on television and on social media—were false. “The evidence developed in this civil proceeding demonstrates that [it] is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true,” Davis wrote on March 31.

In defamation cases like this, plaintiffs must prove that defendants acted with actual malice, a legal standard set in the landmark 1964 Supreme Court case New York Times v. Sullivan, which requires defamatory statements must be false and uttered with reckless disregard for the truth.

Actual malice is a high bar, but Kosseff said tthis was a “rare case where there was so much evidence to help a plaintiff make a case for actual malice.”

Jonathan Peters, a media law professor at the University of Georgia, says the settlement is largest ever collected from a media defendant. The next biggest was the $177 million ABC News agreed to pay in 2017 over allegedly defamatory reporting about a beef product dubbed “pink slime.”

“Fox will feel the $787.5 million, and Dominion will feel it even more—because of their relative financial positions,” Peters said.

“The settlement basically reminds us that the First Amendment is expansive in its coverage, but there are consequences for spreading falsehoods knowingly or recklessly.”

A cagey apology

In a statement, Fox didn’t make an apology or outright admission that it lied about Dominion’s voting machines. Nor will Fox have to make a public statement on its airwaves, per the New York Times’ Jim Rutenberg.

Fox put it this way: “We acknowledge the Court’s rulings finding certain claims about Dominion to be false,” the company wrote in a statement. “This settlement reflects Fox’s continued commitment to the highest journalistic standards.”

A settlement of $787.5 million is chump change for Fox News, which makes billions of dollars each year for its parent company, Fox Corporation. Fox is a defendant in a separate lawsuit against Smartmatic, another voting machine company, over similar claims. Kosseff expects that Smartmatic will be “eager to rely on a lot of the evidence” that Dominion unearthed in discovery.

If Fox has one regret, it might be that it didn’t settle this case sooner.