Most commentary about the Dominion/Fox News defamation settlement has been silly and ill-informed. Especially the legal talking heads about how the law of defamation compelled the settlement and how this settlement will affect future defamation litigation.
Now that most of this foolishness has drifted down from the airwaves to earth, perhaps as fertilizer on the fields of Fox-friendly flyover farms, here is the real legal deal. From one who represented and still knows many at Fox, tried (and lost) a major defamation case against a huge media conglomerate and defended Rupert’s depositions several times, though a damn sight better than done at his recent debacles.
Start right there, with Rupert. The biggest reason the case settled before trial, was to spare him the discomfort of testifying at trial, with the video of his deposition creatively clipped and teed up to embarrass and impeach him should his trial testimony materially deviate from what he said at deposition. Having defended him, it’s clear here that he was ready to testify and would neither lie, dissemble, or equivocate. The deposition clips from this case, that we’ve all seen, confirm this impression.
You heard scores of times that the “actual malice” defamation standard that public figure plaintiffs like Dominion confront at trial is extraordinarily difficult and rarely satisfied. That wasn’t the biggest obstacle Dominion faced and in truth not much of an obstacle at all. Not with the record evidence previewed in public during the months prior to trial. That overwhelming evidence not only comfortably satisfied the actual malice standard, but there were several layers of redundancy. And here the judge erred. While he properly granted Dominion summary judgment on the “falsity” element of defamation, he failed to also direct the jury’s verdict on the actual malice element of defamation. You saw the evidence many times. Fox knew what it reported was false. This was more powerfully and repeatedly demonstrated than the actual falsity of what Fox reported and amplified with commentary.
The “tell” in the Fox statement upon Tucker Carlson’s April 24, 2023 firing, was in thanking Tucker “as a host and prior to that as a contributor.” Thereby maintaining post-settlement their legal argument that Carlson, Hannity and Bartiromo were not Fox correspondents during the relevant period but “just” hosts providing space and hospitality for Giuliani, Sidney Powell, Pillowman and Trump himself to say, what they wanted to say, which the public had a right to hear. Fox is preserving that legal position for the other defamation cases still out there – foremost the Smartmatic action.
The biggest obstacle Dominion faced at trial was not the actual malice standard but the typical Fox News channel viewer who doesn’t give a shit about the truth and began to abandon Fox during the brief period when it told Fox viewers the truth about the election results.
Despite skillful voir dire examination from accomplished trial practitioners there always is a substantial chance that one or more Fox viewers-jurors evade detection and dismissal for cause or peremptorily. And it may well be that despite Dominion’s best efforts to seat an open minded jury (and Fox’ counter efforts), Dominion recognized that the jury seated and ready to hear opening arguments included one or more big problem jurors who might not give a shit about the truth or falsity of what Fox repeatedly published and even worse that such jurors were “leaders” with the potential to advocate and possibly convert other jurors. Both the Dominion and Fox lawyers knew who their problem jurors and leaders were, and that knowledge lubricated the last last-minute settlement.
Now, all that disillusion about Dominion not demanding an admission and on-air apology. This disappointment is shared by HL, nevertheless silly. Such confessions by Fox would do little to change the minds of Fox News viewers other than send many to Newsmax and OAN and do little for Dominion. Its’ $787.5 million take is many times the market value of the entire Dominion enterprise. And what little value to Dominion would have accrued would have been overwhelmed by how much it would have reduced the settlement amount, if that conversion method was even available. We think not, as you will read.
Voicing his disappointment at the lack of admission and apology in the settlement, CNN’s Jake Tapper posed the right questions to Dominion CEO John Poulos. He asked Poulos “was it just like $200 million more if you don’t force us [Fox] to do it [an admission and on-air apology]?” Poulos did not answer this good question and we think no amount of reduction from $787.5 million would have sufficed, because the absence of those admission/apologies is worth much more than $787.5 million to Fox. And that is why despite constantly hearing that the case would/must/will settle and should have long ago, both sides were clearly ready to try the case and even eager to do so. Dominion had the real prospect of getting even more from a jury – up to their demand of $1.6 billion. Fox had that risk, which in truth is a lot of money, but not nearly an existential threat, and the certainty of wrapping itself in the flag of free speech at trial and in the public’s right to hear all points of view. While chanting its slogan of “we report you decide.” And as we said both visions of a trial with sugar plums dancing in their heads quite likely took a hit after a jury was picked with problem jurors for each side seated.
The public interest was not served by this settlement, though it was exceedingly well-served by the widespread pre-trial publication of the damning evidence against Fox. The public and its interests were not going to trial, as sometimes occurs when the government is plaintiff or sometimes occurs in class actions with an important societal objective. Not the case in this trial. One true thing said by many of the legal taking heads was that both Dominion and Fox did well in this settlement – VERY.