The Dominion-Fox Settlement and the “Thirst for Justice”

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This blog post could have been called, “What to Expect from Future Defamation Cases against Fox.”

On Tuesday, just before opening arguments were scheduled in the Dominion-Fox defamation case, the parties announced that they had settled: Fox agreed to pay Dominion $787.5 million.

What followed the announcement was an outpouring of shock and rage. Here is a sampling of the comments I received:

  • Fox should have had to issue televised apologies for propaganda to the public. I am raging that it didn’t happen.
  • Fox News won. Dominion won. The rest of us lost.
  • Dominion cared more about money than the future of American democracy.
  • Our entire governmental system is completely incapable of stopping individuals of massive wealth from using modern media & technology to outright lie to subvert our democracy. We are doomed.

I’ll get to these comments (and many others), but I think it’s best to start with the facts. Once we agree on the facts, the questions and comments will tend to answer themselves.

The Facts

Dominion, the manufacturer of voting machines, sued Fox for defamation, accusing Fox of telling four basic lies:

  • Dominion committed election fraud by rigging the 2020 Presidential Election,
  • Dominion’s software and algorithms manipulated vote totals,
  • Dominion is owned by a company founded in Venezuela to rig elections, and
  • Dominion paid kickbacks to government officials who used its machines in the 2020 Presidential Election

A tort is an act or omission that leads to an injury. Defamation, a tort, is a statement that injures a person’s reputation (or a company’s reputation). If you are injured and suffer damages, you can sue the person who caused the injury and force them to pay to cover the cost of your injury. (Punitive damages are rarely awarded and would be problematic against a media outlet accused of defamation.)

Dominion demanded $1.6 billion in compensatory damages.

Compensatory damages, also known as actual damages, are awarded by a court equivalent to the loss a party suffered. The idea is that a person who causes damage should pay for the damage. It can be difficult to determine what dollar amount will make a person whole after suffering an injury and reasonable minds can come up with different numbers. (Generally, the person claiming an injury will think the dollar amount should be higher than the person accused of inflicting the injury.)

The most Dominion earned in a single year was $17.5 million in 2022, which was after the election and while Fox was lying. so it would appear that Dominion (like, I would assume, all plaintiffs) looked for ways to make the initial demand as high as possible. They never explained how they got from $17.5 million in earnings in their best year to a loss of $1.6 billion.

A plausible outcome at trial would have been for a jury to find that Fox in fact defamed Dominion and caused them damages, but the actual damages were considerably less than Dominion claimed. A jury award of $20 million or even $50 million would not be at all unreasonable.

The Law Governing Dominon’s Lawsuit Against Fox

Because we are dealing with a public company and a media outlet, the controlling law was given in New York Times v. Sullivan. 

New York Times v. Sullivan arose during the Civil Rights movement when the New York Times published an advertisement seeking contributions to defend Martin Luther King, Jr.

Sullivan, a city Public Safety Commissioner in Alabama, understood that the advertisement was criticizing him and his subordinates. Hoping to put the pro-civil rights New York Times out of business, Sullivan sued the New York Times and a group of Black Alabama ministers for libel on the grounds that the ad contained a few factual inaccuracies and libeled him. (Sullivan was not mentioned by name in the ad.) He sued under Alabama libel law. A local jury in Alabama awarded Sullivan $500,000 in damages against The New York Times, a staggering amount for that era which would have likely put the New York Times out of business.

The Alabama State Supreme Court affirmed the judgment. The New York Times appealed to the US Supreme Court. The question was whether the Alabama libel law constitutionally infringed on the New York Times’ First Amendment’s freedom of speech and freedom of press protections.

In deciding the case, the Supreme Court set out a standard for deciding when a publication is liable for lies or inaccuracies. The rule is this:

When a statement concerns a public figure, it is not enough to show that the statement is false for the defendant to be liable. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity.

The standard is meant to be difficult. The rationale was that First Amendment was intended to give people (and media outlets) freedom to criticize public figures.

Under the heightened standard, Sullivan lost. If Sullivan had won, segregationalists would have gone around putting any newspaper that “libeled” them (criticized them) out of business.

Under the standard given in New York Times v. Sullivan (assuming Dominion is a public figure), Dominion must prove each of these elements:

  1. Fox made a false statement purporting to be fact.
  2. Fox published or communicated that statement to a third person.
  3. Fox published the defamatory comments with actual malice, defined as “with knowledge that it was false or with reckless disregard for the truth.” (In other words, more than mere negligence)
  4. Dominion incurred damages or some harm caused to its reputation

Pre-Trial Discovery Uncovered Some Bombshells That Would Have Allowed Dominion To Overcome The High Burden of Proving Actual Malice.

Discovery is the process litigants use before trial to gather information. Because the point is to get to the truth, each side is entitled to all the facts and information known by the other side. Parties may obtain any non-privileged information the other side has that is relevant to either party’s claim or defense.

Litigants can take depositions (questioning under oath) of witnesses, so Dominion was able to take depositions of Fox executives.

Here is a sampling of the evidence that emerged during Dominion’s pre-trial discovery that we learned about from the pre-trial documents filed with the court:

In other words, Fox executives knew that Trump, their anchors, and commentators were lying. We also learn why the executives didn’t stop them from lying:

Thus we learned that Fox went forward with the lies as a deliberate strategy because they knew if they didn’t, they’d get “hit from the right” and would lose their viewers to Newsmax.

Fun tidbit:

  • Col Allan, a former New York Post editor, told Rupert Murdoch that Rudi Guiliani was “unhinged” and the “booze” was getting to him.

Another one:

  • Murdoch called McConnell immediately after the election and urged him to ask other senior Republicans to refuse to endorse Mr. Trump’s conspiracy theories and baseless claims of fraud.

And the biggest “bombshell” at all: In a summary judgment ruling, the court found that Fox lied about the elections and lied about Dominion. This made life much easier for Dominion because they had to prove three elements instead of four.

Legal Arguments

Don’t skip this part. 🤓 It is important.

Dominion relied on the rule in New York Times. v. Sullivan and argued that under the law as it stands, they are entitled to damages.

Fox argued that exceptions should be carved into the rule in Sullivan. Fox argued that if something was “newsworthy” they should be able to report it, and a sitting president and his minions claiming election fraud was “newsworthy.” They called this the “neutral reporting” doctrine. They hoped the court would adopt it.

In other words, had Dominion won at trial, the law would have remained the same. A win, however, would have demonstrated that even under the difficult standard given in New York Times v Sullivan, it was possible to win a defamation case against Fox.

Had Fox lost at trial but won on appeal, and the higher courts accepted their arguments, the law would have changed to make it harder to sue media outlets for defamation, thereby making it easier for them to lie.

Settlements in General

Most cases settle before trial. Trials are always risky. The purpose of civil litigation is to resolve disputes between parties. If every dispute went to trial, courts would be very costly to maintain (courts are funded by the public.) Moreover, anyone who has been involved with civil litigation knows that both sides often end up feeling like they lost. 

Because settlements are the most efficient and cost-effective way to settle disputes, judges (and some statutes, such as California’s Code of Civil Procedure 998) often encourage parties to settle.

Important note: Discovery facilitates settlement because both parties know in advance what will come out in a trial. Cross-examination at trial is often a lawyer trying to get a defendant to say more clearly what they stumbled through and tried to avoid saying in a deposition. New and shocking revelations uncovered in a trial are a Hollywood invention and make for a good show, but it isn’t what happens in real life. The judge and jury may be surprised, but the parties almost always know what will come out. 

The Dominion-Fox Settlement

The New York Times published a piece on what happened behind doors during the settlement negotiations. 

Before we get into the details, keep this in mind: Even people who sat through every minute of the negotiations would be likely to come away with different impressions. During negotiations, people posture. They huff and puff. They demand things they know they will never get to give themselves room to negotiate. People who were involved with settlement talks are likely to spin their side when talking to the media.

That said, here’s what The New York Times reported: Initially it didn’t appear that the case would settle because the parties were too far apart in their demands. Reading between the lines: Dominion wanted a lot of money and a public apology. Fox was not willing to make a public apology or pay a lot of money.

Fox evidently believed they could win the case on appeal, possibly because they were going to make a First Amendment absolutist argument and calculated that enough crazies on the Supreme Court would agree with them. In the meantime, though, the district court judge kept ruling against them, which was embarrassing, created more obstacles, and postponed any possible win until far down the road at the Supreme Court.

After the jury was impaneled, both sides got worried. We all know that juries sometimes get it wrong. (Look at the Rittenhouse trial.)

Fox, therefore, started putting larger amounts of money on the table. As Fox increased what they were willing to pay, Dominion became more willing to forego the public apology.

The Outpouring of Rage at Dominion

Let’s start with this reply that came to me from someone who claims to be a lawyer:

“With all due respect, one attorney to another… did you describe a legal process basically accurately? Yes. But your analysis of settlement has very little meaning to the future of truthful journalism, justice, and real democracy.”

Dominion didn’t sue Fox to save the future of truthful journalism. Dominion sued Fox to recover the damages and financial losses they suffered when Fox lied about them.

Moreover, no serious lawyer would ever utter this sentence: “Dominion should turn down a settlement offer that would compensate them for the damages they suffered so they can save the future of truthful journalism.” In fact, a lawyer who worked for Dominion and said something like that would be committing malpractice.

The person who made the above comment evidently believed that demanding a public apology (or going to trial) would save journalism, justice, and democracy.

I say hogwash. Here is what an apology on television might have accomplished:

  • It might have changed the minds of some election deniers.
  • It might have persuaded some voters that they shouldn’t believe everything Fox tells them.
  • It certainly would have caused temporary embarrassment to Fox and therefore provided some solid schadenfreude for those of us who have been enraged with Fox for decades.

Had the case gone to trial:

  • The trial would have been lit.
  • The appeal would have been a nailbiter.

Here is what a public apology won’t do:

  • Guarantee future truth in journalism.
  • Save democracy
  • Guarantee “justice” in America.

We already have a court ruling in this case that Fox lied. We have a deposition in which Murdoch testified under oath that Trump and his commentators lied. Did those things cause Fox’s support to crumble? Nope.

That’s because there are no magic bullets. Anyone who thinks that an apology from Fox or an admission from Fox (or a trial that embarrassed Fox) will save American democracy does not understand the extent of the problem.

Do you really think these guys will say “Wait, what?! Fox lied about the election! We’re done! Fold up shop. Let’s all go home and learn to love a multi-racial liberal democracy!”

Many of those guys know Fox lies. They love the fact that Fox lies. They cheer on the lies because they know the lies destroy and they want to destroy. (For more on that, see this Slate piece I wrote in 2019.)

Even if you did manage to destroy Fox, all that would happen is that Newsmax would grow. Fox viewers are addicted to the entertainment and constant rage. They love hating the liberals. The Fox message speaks to something that they respond to on a visceral level. You can spend the next 100 years playing whack-a-rightwing propaganda outlet—and right-wing extremism will continue.

“Teri, you are mocking us because we thirst for justice and because we are rightfully frustrated that justice was not done in the Dominion case.”

I responded to this person by insisting that we use the word “justice” as defined in the dictionary, to mean “the fair administration of laws,” in which case, justice was done.

She insisted that she had the right to use the word “justice” in a general sense and called me “pedantic” for showing her the dictionary definition.

It seems to me that “justice” in the general sense means, “If the result isn’t what I wanted, there was no justice.”

The Dangers of Thinking a Magic Bullet Can Save Democracy

People who think that those in power can do something and make the problem of right-wing extremism disappear will continue demanding magic bullets and will erupt with anger and rage when the people in power (or with the kind of limited power that Dominion temporarily held over Fox) fail to do the magic thing that will restore justice and harmony in the world.

If people think there is a magic bullet, how will they have the energy to put in the boring, tedious, grinding work of saving democracy? If enough people are not willing to put in the work, democracy will be lost. Don’t be a whiner with unrealistic demands. Be a doer. Need ideas? See this post.

Okay, let’s look at some of the other comments I received on Tuesday and Wednesday.

“Fox got off with a slap on the wrist.”

If you think a $787.5 million settlement in a defamation case is a “slap on the wrist,” you will never be satisfied by any outcome in any court case, whether it is criminal or civil. In fact, I believe that the demand for indictments over the past two years came from unrealistic ideas of what indictments might accomplish. (For more on that, see this post.)

As Ken White said, “If your expectations for the legal system are not reality-based you’re going to be consistently disappointed.”

“Dominion had evidence that met and exceeded the standards of this precedent. The odds were astronomically in their favor and Fox’s only real hope was to lengthen the trial and hope Dominion couldn’t afford it. Fox achieved their goal and can easily afford the payout while increasing rates to get cable subscribers to pay for it. They also get to avoid embarrassment with their viewers. They won.”

This person seems to be saying that the problem is that Fox could afford the payout and believed that Dominion couldn’t afford a trial. (Spoiler: Dominion could afford a trial and Fox knew that.)

Compensatory awards are made based on the extent of the damages, not what a person can afford. This makes sense if you think about it. If your property is damaged, you want enough money to repair your property. Right?

“Fox won.”

Literally dozens of people told me that Fox won. Each had a rationale for why Fox, in fact, won.

In fact, Fox lost. Dominion was clearly able to prove all four elements, so Fox could not win. Fox therefore paid a very large amount to settle this case.

“Fox won” is literally false. Isn’t saying things that are literally false exactly what people accuse Fox of doing? Truth and accuracy matter. Moreover, if you go around saying “Fox won” you are doing Fox a huge favor by helping to spin a three-quarters of a billion-dollar settlement as a win.

Here was an interesting variation:

“Fox News won. Dominion won. The rest of us lost.”

The rest of us were not a party to the lawsuit, so “we” could not win or lose.

“FOX Propaganda settling for nickels is more than sad. Dominion settling for nickels is more than sad. Where does Democracy settle in against Propaganda? Please inform me! I am anxiously waiting!”

First, calling a settlement of close to a billion dollars “nickles” is an exaggeration. Accuracy matters. Second, “Democracy” and “propaganda” were not litigants in this action so Democracy cannot “settle” with propaganda.

“Fox should have had to issue televised apologies for propaganda to the public. I am raging that it didn’t happen.”

A court of law cannot and will never force a person to issue a televised apology.

A litigant can insist on an apology as part of a court settlement, but evidently Dominion decided they would rather have almost a billion dollars.

“Fox bullies America.
Dominion gets a check. America keeps the same bullying Fox. End of story.
Where’s the justice in *this* story?”

The lawsuit was not brought against Fox for lying to America (or bullying America). The lawsuit was brought against Fox to compensate Dominion for the financial and other damages it suffered when Fox defamed them. The justice is that Fox had to pay for the damage it caused.

“We have seen how bad actors like Trump have settled lawsuit after lawsuit out of court with no admission of guilt and terms often sealed under NDA. Years later they will claim they did nothing wrong but just settled for financial reasons. And then they continue with their abusive nature.”

Doesn’t it suck that there are bad people in the world? Unfortunately, there is no lawsuit that will turn bad people into good people.

Here was another theme in the comments:

“It should be FCC / DOJ / Congress seeking justice for America, not Dominion.”

And this one:

“Frankly, I’m amazed that Fox’s malfeasance has gone unchallenged by the DOJ. Rupert Murdoch is to January 6th much of what bin Laden and his lieutenants were to 9-11, yet all Garland can do is twiddle his thumbs as he whistles past the graveyard.”

To begin with, lying (except under particular circumstances) is not a crime. Fox cannot be criminally charged with lying. You cannot be criminally charged with lying. Your neighbors cannot be criminally charged with lying. However, if Fox, you, or your neighbors tells a lie that causes damage to a person’s reputation, that person can sue for damages.

Moreover, the First Amendment specifically forbids the government from “abridging the freedom of speech or of the press.” That means the government cannot shut down Fox. (There are FCC regulations, but anyone who thought $787.5 million was a slap on the wrist really will not be satisfied with the kinds of penalties likely to be imposed for FCC violations.)

“Going to trial would have been worse for Fox, so this was a win.”

You don’t know that and neither does anyone else. Dominion has more information than any of us have, and Dominion thought they were better off taking this settlement than taking their chances in court.

“Many of us just wanted to watch Fox eaten up in the courtroom and there was a great disappointment that that didn’t happen.”

My response:

  • You would not have been able to “watch” the trial because it was not going to be televised.
  • What you would have been able to read probably wouldn’t have been much different from the bombshells already in the court documents, and which were forgotten within a few days.
  • I also would have loved to watch such a trial, but the legal system doesn’t exist to provide the show I would like to watch.

“Why can’t I sue Fox for all the damage they’ve done to my country? Killing people by telling them not to mask? Covering for lies and crimes of politicians?”

You can’t sue a news outlet for “covering for crimes” (which I assume means “defending a person who committed crimes.”)

As far as the rest, to bring a lawsuit, you have to point to a particular act and show how that particular act was the actual cause of a particular injury. If a person died because Fox told them not to wear a mask, the family might have grounds to sue, but they’ll have to prove actual causation and that isn’t easy. Just because two things happened in chronological order does not mean the first caused the second. Sometimes there are multiple factors. If the person heard the same thing from sources other than Fox, how would you know which source was the cause? If a person is stupid enough to take medical advice from a person on TV instead of their doctor, a jury might conclude that it’s not the person on TV’s fault.

“I am just curious to know if this settlement potentially lays the groundwork for other similar lawsuits – for eg, Fox’s aggressive promotion of hydroxychloroquine or ivermectin during the pandemic.”

This was a defamation lawsuit and Fox lost, so much of it, including Murdoch’s admissions under oath, lays the groundwork for other defamation lawsuits against Fox arising from election lies. I assume Smartmatic is very happy right now.

“People are complaining because this result is an example of the law failing to support the well-being of our society.”

Personal injury law supports the well-being of society by forcing people to pay the cost of the injuries they cause. Defamation law supports the well-being of society by forcing people whose actions hurt a person’s reputation to compensate them for any lost revenue for that harm (if the plaintiff can prove all the necessary elements.

“Support the well-being of society” is a vague standard that will mean different things to different people. I assume that by “support the well-being of society” that person meant “shut down Fox News.”

Along those lines, there was this one:

Our entire governmental system is completely incapable of stopping individuals of massive wealth from using modern media & technology to outright lie to subvert our democracy. We are doomed.

There have always been wealthy people trying to subvert our democracy from the enslavers to the robber barons. Modern media allows bad information to travel faster, but the problem of misinformation and bad information has always been around. We solve problems and work to maintain a democracy the way we always have. The hard way. See this list for how. Also, read a biography of Thurgood Marshall to find out how it’s done.

This is from the comment section: “The weakness of a democracy is that in order to be a democracy it must tolerate the inclusion of those who would destroy democracy.” This is not a paradox. It does not mean we have to let the destroyers of democracy succeed. It means that you can’t kill them all or punish the out of existence. You have to work to keep their danger at bay because they are, after all, a minority.

“Even though this case didn’t go to trial, do you still anticipate that, given the massive settlement & the embarrassing disclosures, it will have a deterrent effect on Fox/Fox-wannabes in the future?”

I don’t believe this lawsuit will deter Fox from lying or defending politicians who are trying to destroy democracy. I do assume Fox will be more careful before they defame companies or individuals. I do assume they will be more careful what they admit or say in writing. After all, it was their written communications, which were discoverable, that would have allowed Dominion to prove actual malice.

This one is from a well-known legal pundit who I will not name because he generally does not say things this wrong-headed:

“A good example of a piece of litigation establishing a social fact was Brown v Board of Education, the fact being separate but equal is not equal. It’s rare that an important social proposition is in the offing, but Fox v Dominion was one such case. Now it ends inconclusively and Fox can keep on doin’ their thing.”

This was a terrible comparison. The plaintiffs in Brown v Board of Education (the case that ended racial segregation in America) were working to overturn established Supreme Court precedent. In contrast, the plaintiffs in Dominion v. Fox were relying on established precedent. Dominion was not seeking to change the law. They were seeking to enforce existing law.

Moreover, the comparison was offensive. Brown v. Board of Education was the outcome of literally decades of work by Black civil rights lawyers who dedicated their lives to changing Supreme Court precedent. Dominion was the result of a company recovering lost profits due to lies told by a media outlet.

How did so many people get such wrongheaded ideas?

One person on Mastodon told me this:

I did hear a lot of predictions on the news channels that Fox News and its hosts would have to make repeated apologies. I think that’s why average citizens like me were disappointed with the settlement yesterday.

Someone else said this:

It is not Teri’s responsibility to educate us. It is the responsibility of the media.

I disagree that it is the media’s responsibility to educate people. It is our responsibility to educate ourselves.

You are the consumers of news. Consumers have a lot of control over what products are offered. Demand facts. Stick with news outlets that deliver facts. If you find that the news programs you watch conflate speculation with fact and keep you riled, consider turning off the television. (After all, conflating speculation with fact and keeping people riled is Fox’s schtick.)

Want to learn more about how the legal system works from books that are (almost) as readable as spy thrillers? I recommend Make No Law by Anthony Lewis and Simple Justice by Richard Kluger as places to start.

Fox’s Legal Troubles Are Not Over: More Lawsuits Against Fox Are In the Works

There are other defamation lawsuits in the works. I will not list them all here. I will say, however, that Smartmatic has an even stronger case than Dominion because Smartmatic had almost nothing to do with the election, is a larger company, and can claim larger damages.

Here is What You Can Expect From These Cases

You can expect the losers to pay for the damage they caused. There may be more bombshell revelations like those that came out in this case.

The best possible outcome for democracy is that when all is said and done, there are fewer election deniers, fewer people willing to vote for election deniers, and fewer people who believe everything right-wing news outlets tell them.

These outcomes are not minor or insignificant. When elections are close and the future of American democracy hangs in the balance, every vote matters.

Can Democracy Work in America?

That is the question.

Plato’s Theory of Democracy

This is from the Stanford Dictionary of Philosophy:

Plato argued that democracy is inferior to monarchy, aristocracy, and even oligarchy because democracy tends to undermine the expertise necessary for the proper governance of societies.

According to Plato, most people do not have the kinds of intellectual talents that enable them to think well about the difficult issues that politics involves. But in order to win office or get a piece of legislation passed in a democracy, politicians must appeal to these people’s sense of what is right or not right.

Hence, Plato concludes that the state will be guided by very poorly worked out ideas that experts in manipulation and mass appeal use to help themselves win office.

In other words, Plato’s theory is that democracy is fragile because the person who is an expert in manipulation and mass appeal will win, not the person best equipped to govern. In the words of Angie Hobbs, a Professor at the University of Sheffield, Plato’s theory of the flaw in democracy “provided a chilling account of how democracy can be subverted into tyranny by an opportunistic demagogue.”

Democracy requires an educated population. Plato obviously thought this was not possible. To prove Plato wrong, we need a large enough percentage of the voting population to be savvy and educated enough not to be manipulated by demagogues that stir their emotions.

One difficulty with getting an educated enough electorate in the United States is that our government and legal system have gotten so large and complicated that it has exceeded the capacity of too many people to tolerate it. Democracy is slow grinding work. Rule of law is complicated. Rule of law in a large country with 51 separate jurisdictions is particularly complicated.

Unfortunately, authoritarianism, which offers quick and easy solutions (“Throw them all in jail! Punish the liars!”) has a lot of appeal.

One small step

About a week ago, a person came to my website and asked me this:

“Do you think DOJ’s inaction has led to insurrectionists, who were allowed to run and get elected to congress, running wild and creating havoc?”

First I made sure he was a real person. (Because most TV pundits stopped spouting that garbage, I didn’t think anyone seriously believed that anymore.) When he proved he was a real person, I sent him to my FAQ pages (this one and this one).

I never heard from him again. Dare I hope that he read them and learned?

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I posted this image of myself on social media. It was shortly after the flooding here in California, and we needed to rebuild a brick patio. I thought I’d see how much of the work I could get done myself. You can see that one of my readers, Peter Bell, added his own caption to the picture:

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