By settling with Dominion Voting Systems, Fox News has avoided an excruciating, protracted lawsuit in which its founding chief, Rupert Murdoch, its top executives and its biggest stars had to face hostile quirks over an embarrassing question: Why did they allow a malicious and defamatory conspiracy theory about the 2020 election to spread across the network when so many of them knew it was false?
But the $787.5 million settlement deal — one of the largest defamation settlements in history — and Fox’s courthouse affidavit acknowledging that the court found “certain allegations about Dominion” broadcast on its programming “were false” — are coming at least. amounts to a rare, high-profile admission of informational misconduct by a conservative media powerhouse and America’s most popular cable network.
“Money is responsibility,” Stephen Shackelford, a Dominion attorney, said outside the courthouse, “and we got that from Fox today.”
The terms of the deal, which was announced abruptly just before lawyers were expected to make opening statements, didn’t require Fox to apologize for any wrongdoing in its own programming — a point Dominion reportedly pushed for.
Shortly after the agreement was reached, Fox said it was “hopeful that our decision to resolve this dispute with Dominion amicably, rather than the acrimony of a divided process, will allow the country to move forward with this issues.”
The settlement contains an implied plea of ”no contestation” of several preliminary findings by the presiding judge in the case, Eric M. Davis, who cast Fox’s programming in an exceptionally harsh light.
In one such finding, the judge sided with Dominion in claiming that Fox could not argue that broadcasting the conspiracy theory — generally related to the false claim that its machines “swapped” Trump votes for Biden votes — fell under a legally protected “newsgathering” status that can protect news organizations when facts are disputed. The judge wrote, “the evidence does not support that FNN reported in good faith and disinterestedly.”
In another finding, the judge wrote that “the evidence developed in this civil suit shows it is clear to the CRYSTAL that none of the statements related to Dominion regarding the 2020 election are true.”
Through those findings, the judge severely limited Fox’s ability to claim that it was acting as a news network pursuing the claims of a newsmaker, in this case the President of the United States, who was the leading clarion call for the false Dominion story. .
In those heady days before the first day of the trial, Fox had indicated that if it lost the trial, it would file an appeal that would, at least in part, contradict those court rulings. Now they are undisputed.
By the end of the day Tuesday, it was clear that Fox’s lawyers were working on some urgent calculus to cushion the financial blow rather than risk losing in the process.
As so many legal experts had argued before the trial, Dominion had managed to collect an unusual amount of Fox internal documentation that showed that many within the company knew that the Dominion election conspiracy theory was pure fantasy. That extended to the highest ranks of the network – right down to Mr. Murdoch himself.
That evidence seemed to bring Dominion close to the legal threshold in defamation cases known as “factual malice” – established when defamatory statements are made “with knowledge of its falsehood or with reckless disregard for whether it was true or not .” (That bar isn’t always easy to hit, though, and there are no guarantees for a jury.)
“Dominion Voting had produced a lot of critical evidence that Fox had acted with actual malice or reckless disregard for the truth, which it could have proved to a jury, so the only question left would have been damages,” said Carl Tobias, a professor of law at the University of Richmond. “The trial of the case may also have undermined Fox’s reputation when the evidence was presented in open court.”
It was less surprising that Fox settled than it did on Tuesday at such a late stage. A trial would have seen Fox News staff and Mr Murdoch argue with lawyers about what knowledge of forgery they had and why they didn’t take action to stop it. The answers would have further exposed the internal modus operandi of an organization that has long guarded its internal operations.
The only question only time will answer is whether the settlement was enough to prompt Fox News to change the way it handles such inflammatory and defamatory conspiracy content. The amount is huge – $787.5 million. Fox News certainly doesn’t want to see a similar settlement as soon as other lawsuits loom, most notably a $2.7 billion lawsuit from another election technology company, Smartmatic.
But Fox did manage to escape Dominion’s goal of a broadcast or apology, which meant it didn’t have to force it on its audience either, who didn’t hear much about the case on Fox’s shows to begin with.
“It’s hard to say how detrimental a decision against Fox would have been to the company, aside from the financial cost of the verdict, because their audience is very loyal and aligned with the polarized perspective their opinion leaders present,” Michelle Simpson Tuegel , a trial attorney, said in a statement. “But the reputational damage of having executives, including chairman Rupert Murdoch, and hosts taking the stand seems to have moved the parties toward a solution.”
