Fox’s Factual Malice

The $787.5 million that Fox News agreed to pay Dominion Voting Systems is the largest publicly known defamation settlement by an American media company. Many who’d hoped that Fox would receive a more severe punishment for knowingly spreading lies about the 2020 election, including the alleged role of Dominion’s voting machines in “stealing” it from Donald Trump, were disappointed by the unexpectedly sudden resolution. Fox did not have to offer an apology or admit to any specific wrongdoing; instead, it issued a short statement acknowledging “the Court’s rulings finding certain claims about Dominion to be false” and cynically insisted on its “commitment to the highest journalistic standards.” The payout is only about half of what Dominion had originally sought, and Fox should be able to write much of it off as a cost of doing business—the very profitable business of feeding fantasies to its viewers, as company executives and on-air personalities themselves acknowledged in private text messages following the 2020 election.

As gratifying as it might have been to see a jury pronounce Fox guilty—or to witness Maria Bartiromo, Tucker Carlson, and other purveyors of Trump’s election lies compelled to make public acts of contrition—the settlement shows there can still be a price to pay for knowingly disseminating falsehoods. It also reveals what can happen when evidence comes to public light in the discovery process. As each new damning detail about the network’s post-election deceptions emerged in advance of the expected trial, Fox’s mendacity was further confirmed. Nor was Dominion the only victim of Fox’s bad faith. Smartmatic USA, another voting-machine company, has its own $2.7 billion defamation case pending against the network and is demanding a full retraction of Fox’s false reporting.

Dominion shrewdly built its public case on protecting and preserving the principles of the American democratic tradition—including the importance of journalistic integrity—yet ultimately this was a business dispute between two large companies with a lot of money at stake. Each made careful calculations in arriving at the terms of their settlement. Fox wanted to avoid the likely revelation of even more damaging information in a lengthy trial potentially culminating in a guilty verdict; Dominion wanted to avoid the possibility of a jury ruling against it, or, in the case of victory, being dragged through years of costly appeals by a corporation with $4 billion of cash on hand and a market capitalization of more than $17 billion.

The case did not fit neatly into the traditional understanding of defamation litigation in the United States, as Quinta Jurecic notes at Lawfare blog. Fox sought protection behind the so-called actual-malice standard established in the 1966 Supreme Court decision New York Times Co. v. Sullivan. This standard requires plaintiffs to prove defamation by showing that a defendant intended to inflict harm by airing its claims. The justices worried then about “the possibility that a good faith critic of the government will be penalized for his criticism,” something that “strikes at the very center of the constitutionally protected area of free expression.” Sullivan has long been seen as a way to defend the press and ordinary citizens from being intimidated or silenced by the powerful, including public figures and elected officials. Not surprisingly, the decision has been targeted by Republicans and right-leaning organizations who feel that their critics are too well protected and would like the actual-malice standard to be lowered, if not eliminated. Florida governor Ron DeSantis is among those floating the idea that Sullivan should be revisited, and Supreme Court justices Clarence Thomas and Neil Gorsuch have expressed openness to such challenges. One wonders what their position might have been had Fox gone on to win its case by invoking Sullivan—not at all outside the realm of possibility. Perhaps the high bar Sullivan sets for defamation suits is exactly where it should be, even if it invites abuse from bad actors like Fox.

Even with the record-setting payout, Fox isn’t likely to change its behavior. The “journalistic” model it has pioneered and perfected is far too lucrative and remarkably durable—capable even of withstanding the forced departures of Bill O’Reilly and now Tucker Carlson. (The latter’s unceremonious firing may have had less to do with election lies than with workplace misconduct and criticisms of Fox executives). The network still wants to let its viewers know it “respects” them, as Fox chief executive Suzanne Scott put it in a text shortly after the election, so as to prevent their flight to outlets even friendlier to Trump. Of course, it’s not really “respect” that viewers are being treated with, but a kind of contempt. Fox has hardly reported on the settlement with Dominion or on the pending case with Smartmatic, and prominent hosts continue to hawk conspiracies and to fan right-wing grievances. The former president, after a period of being absent from Fox’s airwaves, is back giving interviews. All this proves the limits of litigation, which is no substitute for political action. Saving American democracy will require much more from us than cheering on a lawsuit, or jeering as another Fox host gets his comeuppance.