Fox News Dodges a Possible Bullet in Recent Dominion Settlement

In 2021, Dominion Voting Systems sued Fox News and Fox Corp. for $1.6 billion in damages for false coverage of vote-rigging in the 2020 election [1]. Dominion claims that Fox’s coverage of the election included defamatory statements regarding voting machines that Dominion manufactured and that were used in many states in the 2020 election. For Dominion to succeed in showing that Fox acted with “actual malice”, it would have to show that Fox’s statements regarding Dominion’s actions were made with knowledge that they were false or with reckless disregard of whether they were false or not. This is the legal standard of “actual malice” that has defined the balance between First Amendment protections and libelous statements since the Supreme Court ruling in the 1964 case, New York Times Co. v. Sullivan, 376 U.S. 254 [2].

Dominion is one of the biggest voting companies in the world, servicing countries like the United States and Canada. Following the 2020 presidential election, Fox made numerous claims regarding problems and irregularities with Dominion’s machines, including the claim that Dominion voting machines flipped votes from the Republican nominee Donald Trump to the Democratic nominee and now President Joe Biden. If Fox’s claims were true (although now we know they are not), Dominion’s claimed actions would have violated many voting laws [3] and, more importantly, the American people’s trust in the electoral system. In response to Dominion’s claims, Fox has argued that Dominion “cherry-picked” evidence to mischaracterize the network’s election coverage. Additionally, Trump’s lawyers have said that reporting on vote-rigging is newsworthy [1]. Dominion claims that the false allegations have permanently damaged its reputation and its business.

The trial was set to begin on Monday, April 17, 2023. If it had happened, there were going to be many big names taking the stand, including Suzanne Scott, Tucker Carlson, Sean Hannity, Jeanine Pierro, and even Chairman and CEO of Fox Corp., Rupert Murdoch. Before the trial began, Fox was already at a disadvantage. In a prior ruling of “discovery misconduct”, Superior Court Judge Eric Davis admonished Fox News for withholding from evidence recorded conversations between Fox News personnel and former President Trump’s attorneys. The evidence was provided by Abby Grossberg, who had worked for Fox anchor Maria Bartiromo [4]. The evidence was a taped conversation between Trump ally Rudolph W. Giuliani and Maria Bartiromo, in which Mr. Giuliani acknowledged that he had little evidence to back his (and Trump’s) claims of voter fraud. This is an example of evidence Dominion has indicated would show that Fox knowingly aired false claims that damaged the reputation of Dominion. (In a separate matter, Abby Grossberg is suing Fox for wrongful termination of her employment, on the basis that she was fired for refusing to give false testimony to support Fox.)

In the pre-trial proceedings, one of Fox’s key defenses has been that the reporting on false allegations was justified because a former President made the allegations, and they were, therefore, newsworthy. In response, Judge Davis said, “Just because someone is newsworthy doesn’t mean you can defame someone”(Davis, 2023) [5].

Before the trial began, Dominion and Fox News settled the case for $787 million. [5] To many, this was not a surprising outcome because the evidence of Fox’s knowing broadcasts of false statements was material. As a result of the settlement, Fox may make changes to its staffing and its operations. The public disclosure of careless statements by its journalists (like Tucker Carlson and even Rupert Murdoch saying they hated Donald Trump or thought his actions were crazy or that one of Trump’s lawyers, Sidney Powell, was lying [6]) was embarrassing and expensive. Dominion made statements that it hoped the facts of the case would change Fox News’s following, but this may not happen. [5]

Even though Fox knew Trump’s claims were false, why would its journalists still lie about vote rigging? One alarming suggestion is that Trump still greatly influences big companies, especially a company run by former Trump ally Rupert Murdoch. Fox is a right-leaning media group and its followers are primarily Republicans, including Republicans who follow Trump devoutly. If Trump has this much influence on big news organizations, especially after his indictment, who is to say this is not still Trump’s America?

Without a trial, the current standards for determining “actual malice” still stand. Americans have had a window into how Fox decided to air the false allegations, even while knowing that there was little or no evidence to support them. There is evidence that many of Fox’s senior executives believed that Trump and his advisors had lied about the existence of voter fraud. Because a judge has already condemned Fox for withholding evidence, we know that Fox could well have been found accountable for disregarding the truth of what it was broadcasting.

For many people who are not journalists and who have been closely watching this case, the settlement agreement was something of a surprise. However, as David A. Graham, a writer for The Atlantic, smartly put it, “For the critics, this case was about democracy and disinformation and provided an opportunity to hold Fox accountable for years of broadcasting hogwash. For Dominion, it was primarily about business.”[7] Overall, the settlement was probably the better financial decision. If the trial had played out, even if Dominion had ultimately won its claimed $1.6 billion in damages, how much of that money would have been eaten away with legal fees or subsequent appeals? Americans, however, may get another chance to see the full effect of Fox’s behavior. A second suit against Fox, brought by voting machine company Smartmatic (making similar claims of defamation), is still pending, and Smartmatic is claiming $2.4 billion in damages. [8]

The discussion of Fox’s actions during its coverage of the 2020 election is meaningful because it raises questions of whether news companies are protected when they make claims about others’ wrongdoing. The standard of “actual malice” was put in place largely to protect free speech under the First Amendment and limit the ability for private actors to collect damages from journalists acting in good faith. If the Dominion case had gone to trial, it might have led to some changes in the implementation of the standard. It is also possible that Fox’s willingness to settle the case for a substantial amount suggests that Fox had concerns that its internal communications showed that it had, in fact, acted with knowledge that it was lying or with reckless disregard for the truth. [4]