Many people expressed disappointment when news broke that Dominion Voting Systems had settled with Fox “News” on the day the long-anticipated defamation trial was supposed to start.
Dominion executives decided to accept a $787.5 million check from Fox rather than go ahead with the trial and perhaps face years of appeals by Fox if a Delaware jury awarded the $1.6 billion in damages Dominion sought for the false claims Fox aired about the 2020 election being stolen with Dominion machines.
So Dominion took the money and walked away. Fox “News” lives to defame again. Fox was not required to apologize or admit wrongdoing, and even boasted, “This settlement reflects FOX’s continued commitment to the highest journalistic standards.”
But Dominion lawyers got the basic facts on the record, that Fox executives and on-air personalities knowingly broadcast claims about Democratic election fraud in the presidential balloting that they knew were nonsense. And we weren’t going to see courtroom video of Rupert Murdoch and his minions, such as Tucker Carlson, Laura Ingraham, Sean Hannity and others, being cross-examined for their perfidy anyway, because the judge already had ruled that the trial would not be broadcast or recorded. And we know that, for many of the undecided, if there’s no video, it didn’t happen.
The judge ruled Dominion did prove that former President Donald Trump’s continued claims that the election was stolen were false. Dominion had the texts and messages from Fox executives and hosts showing they knew the conspiracy theories the channel aired were nonsense, but they chose to air them anyway to appeal to their audience, who believed the claims and wanted to believe Trump had won.
“Lies have consequences,” Dominion lawyer Justin Nelson said, adding: “Today represents a ringing endorsement for truth and for democracy.” If they’d gone to trial, Dominion’s lawyers would have to convince the jury that Fox’s actions met the legal standard of “actual malice,” which meant the broadcasters knew better, or that they showed a reckless disregard for the truth. Dominion had an exceptionally strong case. But Fox emerged with its “brand” intact of giving the rubes what they want to hear, rather than risk their viewers switching even further on the right wing, to Newsmax or One America News.
Settlement of the Dominion case may have defused an effort to test the First Amendment protections afforded to the media in reporting and commenting on public figures. But more challenges are likely against the nearly 60-year-old Supreme Court decision in New York Times v. Sullivan, which set the “actual malice” standard, which public figures need to prove to win libel cases against the media. David Enrich of the New York Times noted that a founder of one of the law firms that represented Dominion is leading a campaign to get the Supreme Court to overturn its decision in Sullivan.
“For decades, the Sullivan ruling was widely regarded as an essential safeguard that allowed journalists to aggressively cover public figures without fear that accidentally publishing an error — even a serious one — could expose them to devastating damages,” Enrich wrote.
“But over the past several years, with former President Donald J. Trump and other conservative leaders bashing the news media, that consensus has frayed.”
Justice Clarence Thomas in 2019 wrote that the Sullivan decision and some of the court’s subsequent rulings “were policy-driven decisions masquerading as constitutional law” and should be overturned. (And that was long before ProPublica’s blockbuster reports in April on Thomas’ sweetheart deals with billionaire real estate developer Harlan Crow, and other gifts and business dealings Thomas failed to report.) Two years later, Justice Neil Gorsuch also signaled his openness to reconsidering Sullivan, which he said had “evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
In recent court cases, Enrich noted, Republican politicians suing the news media for defamation — including former Senate candidates Don Blankenship and Roy Moore and former congressman Devin Nunes — have explicitly pushed judges to abandon the Sullivan ruling. And conservative groups like the Heritage Foundation and the Federalist Society have been convening public panels to discuss how the Sullivan ruling supposedly permits biased, vindictive journalists to defame their enemies with impunity.
Elizabeth M. Locke, a founding partner at Clare Locke, a defamation law firm that represented Dominion in its lawsuit against Fox “News,” has emerged as one of the most vocal advocates for overturning the Sullivan ruling.
“It’s virtually impossible to bring and win one of these cases,” Locke said earlier this year. The media “have complete immunity from liability.” (In fact, Enrich noted, Locke’s law firm and others have recently secured multimillion-dollar jury verdicts for public figures suing the media for defamation.)
Locke spoke at a televised event that Florida Gov. Ron DeSantis hosted to build support for reversing Sullivan.
DeSantis has pushed the Florida Legislature to curtail legal protections for the media, which some experts regard as an attempt to trigger litigation that would give the Supreme Court an opportunity to reconsider Sullivan.
But Rodney A. Smolla, another lawyer representing Dominion alongside Locke’s firm, said the Dominion case shows plaintiffs can win under the actual malice standard, as long as judges allow plaintiffs to engage in discovery. “This takes some of the oxygen out of that argument” that libel cases are unwinnable, he said.
The impact of Dominion’s lawsuit was always going to be limited because of Fox’s ultimate weapon: cable carriage fees, Media Matters for America President Angelo Carusone noted.
“The dirty secret about Fox News is that it is one of the only commercial TV channels that doesn’t need a single advertisement to be profitable, if not the only one. In fact, Fox could have zero dollars in ad revenue and still have at least a 35% profit margin. This is the result of carriage fees and the guaranteed revenue they provide Fox,” Carusone wrote at MSNBC.com April 20.
Fox News is gearing up to renew contracts with major cable providers worth more than $1.6 billion annually to Fox at current rates. And Fox is seeking an increase in the rates from the current average of about $20 per year to $36. So cable subscribers will pay for Fox News’ settlement, even if they don’t watch Fox News. (See UnFoxMyCableBox.com.) “With the Dominion lawsuit settled, Fox will now put all of its energy into these carriage renewals,” Carusone wrote.
Next up is Smartmatic, another voting tech company that was often lumped in with Dominion while Fox was making the false claims. A New York judge in March allowed Smartmatic’s $2.7 billion lawsuit to proceed. And Smartmatic’s lawyer said he won’t settle for less than a retraction, and the $787 million Dominion got. So we’ll probably end up paying for that, too. — JMC
From The Progressive Populist, May 15, 2023
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