Fox settlement shows press freedom isn’t incompatible with accountability

Can there be some measure of accountability for victims of defamation by right-wing rage machines like Fox without sacrificing free press rights? Because this settlement showed just that.

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Image Crediy: Erin O’Flynn/The Daily Beast/Getty Images and Fox News

When was the last time you forked over nearly $800 million?

Really think. There must have been some moment, some dispute where you decided to reach deep within your checking account to find the better part of a billion dollars—a dispute where you weren’t wrong, but you wanted to end things the easy way.

CNN: Fox News settles with Dominion at the last second, pays more than $787 million to avert defamation trial over its 2020 election lies

CNN journalists (4/18/23) had a hard time concealing their enjoyment of the news of Fox‘s capitulation.

Well, Fox News knows the feeling. While the United States braced to watch a sure-to-be-fascinating defamation trial between Rupert Murdoch’s prized cable news channel and Dominion Voting Systems—which alleged that Fox had repeatedly aired false claims that it fixed the 2020 presidential race for Joe Biden—the two parties reached a settlement. The $787.5 million is about half of the $1.6 billion the election technology company demanded.

Nevertheless, as CNN (4/18/23) reported, “Fox News’ $787.5 million settlement with Dominion Voting Systems is the largest publicly known defamation settlement in US history involving a media company.” It amounts to 5.5% of total revenue of the Fox Corporation, Fox News‘ parent company, for all of 2022.

It’s still less than what Alex Jones of Infowars was forced to pay after a court found that he had repeatedly defamed the parents of the Sandy Hook shooting victims for faking the massacre (Independent, 9/15/22; AP, 10/12/22). And this wasn’t Dominion’s first settlement regarding false election claims: Newsmax, a network that’s sort of like Fox News on crystal meth, settled a similar lawsuit with Dominion two years ago (Business Insider, 4/20/21).

Fox’s critics are disappointed; the network gets to keep its dirty laundry out of the light, and it still retains its place as the go-to right-wing cable news source (Atlantic, 4/19/23). On the other hand, Dominion attorney Justin Nelson (Deadline, 4/18/23) told reporters: “The truth matters. Lies have consequences,” and that the settlement “represents vindication and accountability.”

Tough legal road

LAT: Why Fox News’ lies about Trump’s defeat probably aren’t protected by the 1st Amendment

Harry Litman (LA Times, 2/21/23): “Lies of the sort the [Fox] network appears to have told its viewers don’t enjoy or deserve constitutional protection.”

On the face of it, Fox had one big thing on its side going into the trial. The 1964 Supreme Court decision New York Times v. Sullivan holds that a plaintiff who’s a public figure must show “actual malice” in order to prove libel, which means the defendant must have known that the defamatory statement was false, or else showed “reckless disregard for the truth.” This is a tough standard to meet in court, and one that we’ve defended at FAIR (3/26/21, 2/25/22, 3/1/23, 3/10/23) against conservative calls to overturn the decision.

But it does not seem to have been too tough for Dominion to meet. It appears that the Fox lawyers, taking a look at the jury, smelling the wooden air of the courtroom and looking at all the discovery documents showing that Fox hosts knew what they were airing was bunk, said to themselves, “We’re not going to win this one.”

They had good reason to be nervous. At the beginning of the trial, the network apologized to Judge Eric Davis, who is overseeing the case, after he said the network “made misrepresentations to the court and delayed turning over evidence” (ABC, 4/15/23). Fox News host Howard Kurtz tweeted (4/16/23): “Judge knocks down some of [Fox‘s] key defenses, sanctions the network and suggests an investigation.”

Observers forecast a tough legal road for Fox. The New York Times (4/6/23) said that “a number of well-regarded First Amendment lawyers have called the Dominion case among the strongest they have ever seen,” because

the documents produced in discovery go far in establishing that people on virtually every level of the company knew that the allegations about Dominion were wrong yet for weeks did nothing to cut them off.

LA Times legal affairs columnist Harry Litman (2/21/23) wrote that Dominion’s case was “unusually strong.” “Defamation suits often concern the work of careless or sensationalist reporters slipping past fact-checking safeguards,” he noted. However, the allegations in this case had threatened to “lay bare a deliberate corporate decision to ignore the truth and publish lies.”

At Bloomberg (3/18/23), Noah Feldman balanced the necessity of protecting press freedom and holding press outlets accountable, saying that courts should strive to “preserve the core idea behind the law of libel: that no one, not even the media speaking about a public figure on a newsworthy topic, may knowingly repeat defamatory lies as statements of fact.” Feldman added that if

we abandon that basic idea, we will launch public discourse into a fully fact-free zone. Donald Trump has already done his best to put us there. The courts and the Constitution should not give him an after-the-fact victory.

In-house cheering squad

WSJ: Dominion’s Weak Case Against Fox

“If the applicable law is faithfully applied,” former Attorney General William Barr confidently predicted in the Murdoch-owned Wall Street Journal (3/23/23), “the case should be decided in Fox’s favor.”

And yet Murdoch’s empire, as well as some other conservative journalists, had spoken publicly in the network’s defense, seemingly convinced of Fox’s blamelessness. William Barr, former attorney general under George H. W. Bush and Donald Trump, assured readers of the Murdoch-owned Wall Street Journal (3/23/23) that the case against Fox, before the trial, was weak, because “it isn’t defamatory for journalists to report on newsworthy allegations made by others, even when those allegations turn out to be false.” (In fact, reporters who repeat defamatory falsehoods are often committing libel, though there are exceptions to this general rule—Volokh Conspiracy, 11/7/18.)

Washington Post media writer Erik Wemple noted that Fox even publicly scoffed at the lawsuit last year in its annual report (Twitter, 4/19/23).

The idea that it’s been proven that Fox aired false accusations “is virtually gospel among American liberals,” complained Glenn Greenwald (System Update, 3/3/23), a frequent guest on Fox’s Tucker Carlson Tonight. “As usual, these corporate media outlets”—as though Fox were somehow not corporate, or not a media outlet—“along with Democratic Party leaders, are marching in total lockstep, and none has aired any skepticism or questioning of this accusatory framework.”

The Murdoch-owned New York Post editorial board (4/17/23) pulled an “I know you are but what am I?” routine in regards to the Dominion case, saying that the New York Times ran “endless Russia, Russia, Russia stories” about 2016 election interference (AP, 4/21/20),  as well as the 1619 Project (8/14/19), which it called a

Pulitzer-winning disinfo push hawking the factually inaccurate idea that the American Revolution was undertaken primarily to preserve the slaveholding rights of Southern colonies.

There’s some difference between allegations of defamation and a controversial interpretation of US history. Who does the Post think should sue the Times for damages over the 1619 Project, the ghost of James Madison?

The Post went on, “How many internal emails from the Times’ own newsroom would express private concerns over coverage, even as bogus stories are rushed into print to juice subscription revenues?” That’s actually a fair question, especially when you consider the Times’ coverage of the lead-up to the Iraq War (FAIR.org, 3/22/23). However, that still doesn’t vindicate Fox.

No need to weaken press protection

NYT: Right-Wing Media Splits From DeSantis on Press Protections

Stripping protections from the press may be good politics for Republican officials like Florida Gov. Ron DeSantis, but not necessarily good business for their allies in right-wing media (New York Times, 4/3/23).

These defenses seem laughable now that Fox has decided to part with the equivalent of the gross domestic product of Samoa in order to keep its dirty laundry out of the public eye. Interestingly, though, Barr’s defense of Fox got one thing right when he said, “Conservatives shouldn’t try to weaken the actual-malice standard”—which is something, as mentioned earlier, many conservatives want to do.

In fact, some right-wing outlets are already warning the Florida Republican Gov. Ron DeSantis’ effort to challenge Sullivan could backfire, because, as the New York Times (4/3/23) put it, it “would affect right-wing reporters and commentators, not just the mainstream outlets that have become punching bags for Republican politicians.”

But what Barr, and the other Fox defenders, didn’t quite understand is that there can be some measure of accountability for victims of defamation by right-wing rage machines like Fox without sacrificing free press rights. Because this settlement showed just that.

FALL FUNDRAISER

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