The jury in the libel trial of the century had already been sworn in: Five Black men, two Black women, three white women, a white man, and a Latino woman. Considering that the defendant was Fox News Network, the powerhouse right-wing cable TV king, it was hardly shaping up to be its sort of audience.
Sure enough, just before opening arguments began in Delaware Superior Court this week, Fox settled a lawsuit brought by a Canadian voting machine company, Dominion Voting Systems. The cost? A whopping $787.5 million, which is the largest amount of money ever paid to settle an American media libel case.
Oh, and perhaps another, bigger cost to Fox: Two months of pre-trial publicity that shredded the network’s credibility. CNN’s Jake Tapper correctly described it as “one of the ugliest and most embarrassing moments in the history of journalism.”
The issue at the heart of the case was whether Fox, for business reasons, knowingly promoted lies about the 2020 U.S. presidential election.
Dominion sued Fox for $1.6 billion, claiming the network and its all-star commentators deliberately accused it of siphoning votes for Donald Trump to votes for Joe Biden, robbing Trump of the presidency. Fox hosts invited a parade of Trump’s lawyers to repeat this lie, feeding a cocktail of conspiracy theories that fuelled Trump supporters who stormed the U.S. Capitol on January 6, 2021, and attempted to stop Congress from certifying Biden’s victory.
The David in this David and Goliath story is Dominion, an election machine company named after Canada’s Dominion Elections Act of 1920 and founded in Toronto by John Poulos and James Hoover. Its main offices are in Toronto and Denver and it describes itself as the leading supplier of U.S. election technology, serving voters in 28 states.
Among the more laughable and bizarre theories endorsed by Fox News was that Dominion changed votes through algorithms in its voting machines that were created in Venezuela to rig elections for the late dictator Hugo Chávez. Even before the trial began, Judge Eric Davis ruled that this and other claims about Dominion were inaccurate.
The groundbreaking settlement “represents vindication and accountability,” Dominion lawyer Justin Nelson said. “The truth matters”. He added: “Lies have consequences … For our democracy to endure for another 250 years, and hopefully much longer, we must share a commitment to facts.”
Fox News escaped without having to apologize for any of its lies. It issued a statement admitting that the court found that “certain claims” about Dominion were false, but did not identify them. It added: “This settlement reflects Fox’s continued commitments to the highest journalist standards.”
Take a wee moment here to choke on that. No mention of “we lied,” or “sorry,” or “we’ll do better next time.”
(Disclosure: Earlier in the case, I was interviewed by lawyers from Winston and Strawn LLP, the law firm representing Fox News, about being a possible expert witness on journalism at this trial. I have given testimony at the request of both plaintiffs and defendants in many previous defamation cases in Canada and the U.S. They said their defence would be freedom of the press, that what Trump and his minions claimed was newsworthy and they had a duty to report it. I asked if Fox News had a code of journalism standards that spelled out how its reporters are supposed to go about verifying information. The conversation abruptly changed and they made clear they did not want to go there. Needless to say, my involvement was neither offered nor sought.)
Tuesday’s settlement spared Fox the peril of having some of its best-known figures called to the witness stand and subjected to withering questioning, including executives such as Rupert Murdoch, the 92-year-old who serves as Fox Corp chairman, as well as on-air hosts Tucker Carlson, Sean Hannity and Jeanine Pirro. These people never had to acknowledge in public that they knowingly pushed lies.
Rupert Murdoch got to stay home and avoid the glare of the courtroom. His son, Fox Corp. CEO Lachlan Murdoch, was able to kick back on his $150 million yacht instead of making the trek to Wilmington, Delaware. Fox has cash on hand to pay for the settlement. The company is valued at more than $17.6 billion.
What remains to be seen is whether Fox, founded by Rupert Murdoch in 1996 and now the most influential media operation in American political history, will continue to hold sway over the Republican party or whether its damaged reputation as a news organization will weaken that. My guess is that Murdoch’s business model—give the people what they want—will endure.
His business is facing further damage though. A second voting machine company, Smartmatic, has already filed a $2.7 billion defamation lawsuit against Fox News, the Fox Business host Maria Bartiromo, the former business anchor Lou Dobbs and Trump’s former lawyer Rudy Giuliani. Earlier this month the New York state supreme court allowed it to proceed.
It’s an even more aggressive lawsuit than Dominion filed, and it has the advantage of using some of the same email disclosures Dominion’s lawyers extracted from Fox, including that Murdoch thought the election denialism was “really crazy,” even as Fox personalities peddled those same claims to millions of viewers. Tucker Carlson’s email to a colleague said he “passionately hates” Donald Trump, whose presidency was a “disaster.” Fox hosts, producers, fact-checkers, and senior executives privately said in the on-air claims of a stolen election were “kooky,” “dangerously reckless” and “mind-blowingly nuts.” Yet hosts repeatedly invited Trump acolytes on air to spread these views.
If the Dominion lawsuit accomplished anything, it was to demonstrate that facts are bad for business at Fox News. When a Fox News reporter dared to fact-check a Trump tweet and said there was no evidence of fraud on Dominion’s part, Tucker Carlson texted “Please get her fired” to his prime-time colleagues Sean Hannity and Laura Ingraham. “It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.”
When another Fox News reporter fact-checked a press conference by Giuliani and fellow Trump lawyer Sidney Powell, Fox News CEO Suzanne Scott complained in an email that “I can’t keep defending these reporters who don’t understand our viewers and how to handle stories.”
The irony of Fox News standing as a beacon for freedom of the press should rankle us to the core. Journalism’s job is seeking the truth and going through the process of verifying it. Fox, its email disclosures show, is in the business of pandering to its right-wing audience, sometimes by suppressing or misrepresenting the truth.
And a news organization that is so afraid of losing its audience and its profits that it gives them only the news it thinks they will agree with … that is no news organization at all, but just another cheerleader on a soapbox barking for attention and totally lacking in credibility.
Let’s hope the Smartmatic case will force Fox to actually admit it.
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