In Wilmington, Delaware (a state where many US corporations have their legal domicile because of the state’s business-friendly legal environment), on Tuesday, 18 April, a last-minute settlement agreement between Dominion Voting Systems and Rupert Murdoch’s Fox News produced a whopping big, unprecedented settlement (in dollar value) of the defamation suit. This was not just any run-of-the-mill defamation suit since it involved Fox News (so to speak) Network and its parent company, Fox Corporation — and, of course, “Big Daddy” Murdoch. 

This $787.5-million settlement is a whole lot of walking-around money to be paid to Dominion, whose total market valuation, pre-settlement, was about one-seventh of the settlement amount. Because the settlement comes from a pre-trial agreement between the parties, rather than a trial verdict, the amount cannot be appealed at a higher court. The cheque must be in the mail. 

Fox had earlier faced a statement by the presiding judge, Eric Davis, “that it was CRYSTAL clear” (the judge’s capitals) that the claims Fox aired about Dominion were false, but Fox, in agreeing to the settlement, issued a mealy-mouthed admission of its mistakes. 

At least for now, the company and its gaggle of “news” commentators have been spared the ignominy of being forced to broadcast and publicise humiliating mea culpas where they would be required to admit attempting to foster a broader climate of fear and anger over deeds that demonstrably did not happen — and that, crucially, they knew had not occurred. 

The $787.5-million settlement is a lot of cash just so those nightly animal acts on Fox News do not have to announce they are embarrassed to the core of their respective beings. And, crucially, that they are sorry to explain they have been lying about the results of the US presidential election, ever since it took place on 8 November 2020. 

A friend of mine, a retired diplomat with decades of experience in negotiating complex trade disputes and international economic agreements with several major East Asian nations, spoke for many about the mixed pleasure and disappointment he felt about this settlement.

He said: “I desperately wish that Dominion had seen itself as representing Democracy [yes, capital ‘D’], not just its own interests, because this case really was about accountability for a company [Fox News] that holds itself out as practising journalism, knowingly peddling lies and punishing those within its ranks who tried to stop that.  

“A just ending would have had Murdoch and all of the on-air personalities marched onto the witness stand, a hefty punitive damages finding, and a requirement that every one of the on-air personalities read a first-person singular admission at the beginning of their shows each night for a week that begins ‘I lied to you. I knew I was lying to you but I did it anyway. And now Fox has to pay billions of dollars for those lies.’ ” 

But it hasn’t quite panned out that way. Instead, there is something of a deflated, anti-climax feeling about the settlement. We should remember, though, that there is a second case, being pursued by Smartmatic, another voting system company, (and maybe yet others who feel hard done by, by Fox News) that is significantly aligned with this one. 

A preamble for the next lawsuit

The Smartmatic lawsuit has yet to come to trial, but the evidence Dominion’s attorneys obtained about Fox News, which was made available during the discovery phase of the would-be trial, will be available to the lawyers in the new case. The Dominion settlement will be a preamble for when the next pack of attorneys pursue their case. Fox is unlikely to have much left in other hidey-holes in the manner of exculpatory evidence they will be able to bring forward, since they clearly had none in the Dominion suit. 

Instead, in Tuesday’s agreement, Fox News lawyers effectively had little choice but to agree in their settlement with the judge’s earlier stipulations about the evidence made available in the discovery stage that the claims Fox aired had been false. 

Just as the trial was about to begin, the jury was dismissed with the thanks of the court, and the vast media scrum that had gathered for the opening arguments by the two sides dispersed to try to find out more about the settlement and to make sense of the results as well as predictions for things to come. Key among such questions are what it means for Fox’s future; what it means for freedom of speech (especially when the news being purveyed is fraudulent); and what it means for Donald Trump’s upcoming encounters with the law. 

Especially for the Fox Corporation, there may be further uncomfortable (and costly) moments ahead. While the company is usually thought of simply as a tool of Rupert Murdoch and his son, some 60% of its shares are owned by other individuals and institutions beyond the Murdoch family, and there is also a board of directors, many of whose members are not family members. 

Taken together, these people and entities may have some sense of the destruction of value coming from this first settlement — and the ones ahead. (And, of course, the head of the family is in his nineties and, based on an earlier deposition, it is clear he is no longer at the top of his game.) Taken together, there may possibly be some efforts to alter the course of the mothership. 

In the trial that wasn’t, what did not happen was for a rogues’ gallery of Fox broadcasters, from Tucker Carlson and Sean Hannity, down to the lesser on-air gargoyles, company executives, and possibly even old man Murdoch himself to be summoned to testify. They would have had to personally address the quandary that, per the documents obtained by Dominion’s lawyers, while they personally did not believe — and had so stated in memos and emails — in the Trump campaign’s lies about a stolen election, they still felt it was important to foist such garbage on air to buoy the share price of the Fox brand and to prevent Maga-ites defecting to even more appalling “news” sites like Newsmax and One America. 

The Fox News people knew there was no mass of purloined ballots hidden away in trash bins or rubbish tips. There were no dark Venezuelan connections or Italian spy satellites magically flummoxing Dominion’s voting machines. And there was no late-night ballot-stuffing by evil Biden operatives who had suddenly found (or created) vast treasure troves of absentee ballots mysteriously cast by phantom citizens. And yet, they made such claims on air. 

In fact, save for a very small handful of suspicious ballots, some by Republican politicians, there was little to see except for about 158 million citizens voting in a hotly contested, but peaceful election. This was an election won by a significant margin by Joe Biden who dutifully became president on 20 January 2021. The Trump forces had gone to courts across the country dozens of times to overturn the count, and in every case save one had their accusations tossed out. In one suit there was a difficulty with the count on technical grounds, but these did not change the outcome. 

Fox’s faux pas

The faux pas that set off the ensuing firestorm was committed by Fox News itself when its own voting and results analysis team (those statistically skilled people in the backrooms of major news services who do the analysis of real-time voting data — as it is released — to project winners in the various races) called the election in the state of Arizona for Biden. But they did this before such a decision could be accepted by Fox’s upper management, along with a sotto voce assent from the Trump camp. From that moment, it was off to the races in fuelling the conspiracy mongers’ hallucinations about all that imaginary deep-state treachery and vote tampering by Biden’s operatives and voting-machine companies like Dominion. 

The core of Dominion’s case was all those false claims that Fox talent aired relentlessly. Had there been an actual trial, testimony by Hannity, Carlson, Maria Bartiromo, the other on-screen types, and the grandmaster himself would have been central to Dominion’s efforts to show that not only were all their on-air claims untrue — per all the obtained documents — but that Fox’s actions met the legal standard of “actual malice”. 

That means the company actually knew better or that it had shown a reckless disregard for the truth. The First Amendment does not protect such excesses by broadcasters, although proving the charges is difficult as it goes to someone’s mental state and knowledge, unless, it seems, one has them on record as saying precisely what is charged. 

Historically, Fox has traditionally settled sticky lawsuits rather than go to trial. There was that British phone-hacking scandal, those sexual misconduct charges and gender discrimination cases, and various other misdeeds. This is presumably by design, but it does tend to deprive the broader public of being able to witness a full hearing of the merits of the allegations. 

This time around, Fox seems to have moved towards a settlement only after all those thoroughly damaging revelations were aired in the legal discovery process and early court prelims. This material made it clear that many at Fox knew better about the conspiracy theories than how the network aired such stories; that it chose to air them anyway in the name of appealing to an audience that believed these claims and wanted to believe Trump won; and Fox’s news product toed the company’s political line, regardless of the facts. 

The miasma that now thoroughly hangs over Fox News is one of the lessons that emanates from the evidence. Others should, going forward, view its news product — and its journalism generally — with a thoroughly jaundiced eye if they don’t already. The company’s actions underscore the view those shows are tailored to an audience’s views and beliefs rather than reflecting what the people behind the scenes actually know or believe to be true. 

Trump looms large

The case has underscored how much control Trump still has over his Maga movement and Fox’s fear of what Trump could do to it if they move back to the land of reality. For Fox viewers, however, there remains the problem that Fox only sparingly covered the run-up to its own would-have-been-trial, and largely barred its own media beat reporter from covering the story. 

In that regard, the Washington Post noted, “The conservative media ecosystem is exceedingly insular. Just as Fox capitalised on its audience’s false beliefs about voter fraud — even as such claims had been routinely debunked elsewhere — it will probably benefit from their disinterest in learning what just happened at their favoured cable news outlet.” 

Fox News did not full-heartedly embrace its own settlement, although it did eventually say, “We acknowledge the Court’s rulings finding certain claims about Dominion to be false.” By contrast, Dominion’s CEO said, “Fox has admitted to telling lies about Dominion.” And the company’s attorney added, “Lies have consequences. Today represents a ringing endorsement for truth and for democracy.” 

Looking ahead, the Post added, “Fox still has to contend with a similar lawsuit from another voting technology company, Smartmatic. The company was often lumped in with Dominion while the false claims were made on Fox, and in some cases the claims against Smartmatic arguably went further. A New York judge last month allowed Smartmatic’s $2.7-billion lawsuit to move forward. The size of the payout in the Dominion case will only make the stakes of this next case even larger.” 

In fact, Dominion has said it is not done with this matter yet. Its lawyer Stephen Shackelford said, “We’ve got some other people who have some accountability coming toward them. And we’ll move right on to the next one.”

Oh, and lest we forget, the MyPillow guy is likely to have some sleepless nights as well. Dominion is also suing MyPillow’s CEO, Mike Lindell, who gave out false election claims on Fox and elsewhere. This may matter to Fox as well, since documents that came out into the open for the first case show Fox called him their top advertiser. 

A ‘credibility problem’

Along the way, the presiding judge, Eric Davis sharply criticised Fox’s lawyers (and ordered further investigations) when Dominion charged that Fox had obscured Murdoch’s status as an officer of both Fox News and the Fox Corporation, arguing his actual status would have entitled Dominion to yet more evidence in the case. The judge said Fox had a “credibility problem” and that the issue might well have influenced his own previous decisions. The judge has now appointed a special master to see whether Fox abided by its legal obligations to produce the documents and communications it was required to make available. The bottom line here is that it is never a good plan to irritate your judge before the trial even begins. 

Returning to the upcoming Smartmatic case, and its voluminous complaint filed in the New York State Supreme Court back in February 2021, it has alleged, as the Post reported, “Fox News knowingly made ‘over 100 false statements and implications’ about the company, amplifying false information from former president Donald Trump and his allies that Smartmatic played a role in his election loss. In February, a New York appeals court ruled that the case was allowed to proceed.” 

Following the Dominion settlement, Smartmatic’s attorney Erik Connolly issued a statement saying, “Dominion’s litigation exposed some of the misconduct and damage caused by Fox’s disinformation campaign. Smartmatic will expose the rest. Smartmatic remains committed to clearing its name, recouping the significant damage done to the company, and holding Fox accountable for undermining democracy.” 

In addition to Fox News, the Smartmatic complaint has specifically named Fox on-air hosts Maria Bartiromo, Lou Dobbs and Jeanine Pirro, as well as former Trump lawyers Rudy Giuliani and Sidney Powell, although Powell was dropped from the lawsuit because she is a Texas resident and the New York court has no jurisdiction over her. 

Smartmatic is also suing Newsmax and the parent company of One America News, alleging those two outlets similarly defamed Smartmatic when they suggested it had helped rig the election against Trump. Smartmatic’s suit against Newsmax is also being handled by Delaware Superior Court Judge Eric Davis. 

And while all these cases are separate, each of them, the Smartmatic lawsuits and the various cases being pursued or built against the former president may all become a continuing wave of front-page and evening broadcast news fodder just as Republican would-be presidential candidates try to win support in party primary elections in early 2024. This is going to be a very messy business. DM