Initial word of the developments came on Sunday night, just as reporters were gathering in Wilmington for a six-week trial. The Wall Street Journal had reported that Fox News has mounted a late push for such discussions. In its complaint, Dominion seeks $1.6 billion in damages.
Fox News has countless reasons to settle. We’ll address three of them:
Bad PR: Every phase of this case has demonstrated the depravity of Fox News to the rest of the world. The lawsuit, filed in March 2021, outlined the heinous death threats directed at Dominion employees stemming from false reports on Fox News that the company engaged in election fraud. Following discovery in the case, Dominion released troves of emails, text messages and other materials showing that while some Fox News programs indulged the lie that the 2020 presidential election was stolen from incumbent Donald Trump, there was widespread derision of that idea among top hosts and executives.
While it’s possible the release of those materials means the network has already absorbed most of its public-relations pain, there’s no telling how an extended trial would play out. A few slip-ups by top Fox News personalities such as Sean Hannity, Tucker Carlson or Fox Corp. mogul Rupert Murdoch could expose fresh instances of mismanagement and dishonesty.
Fox News in 2020 settled an emotional-distress lawsuit from the parents of Seth Rich, a Democratic National Committee staffer, whose killing in 2016 was treated as the centerpiece of a bizarre conspiracy theory on Fox News. That settlement came before discovery materials surfaced in the public sphere — perhaps a move that the network should have replicated in the Dominion case.
A skeptical judge: Pretrial hearings last week were a disaster for Fox News. If Davis wasn’t criticizing the network’s lawyers for preparing backdoor arguments that might contradict his rulings, he was criticizing them for failing to tell him about Murdoch’s official title at Fox News or for withholding evidence from Dominion. He even snarked that Maria Bartiromo, one of the hosts whose work is under scrutiny in the trial, was a “neutral” actor, only to admit shortly after that he was being “sarcastic.”
Any worthwhile risk assessment by Fox News must contemplate the possibility that its lawyers would keep getting hammered by Davis in the jury’s presence.
What would happen if Fox News, somehow, prevailed? Just suppose that Fox News’s lawyers convince the jury that the network, in broadcasting the false and damaging statements about Dominion, didn’t proceed with “actual malice.” That’s the standard that emerged from the landmark 1964 case New York Times v. Sullivan, which provided robust protections to media organizations when reporting about public officials. (The protection was later broadened to public figures.)
The standard itself requires plaintiffs to prove that the media outlet published a knowing falsehood or acted with “reckless disregard” of its truth or falsity. The hundreds of pages of discovery materials in the case show that hosts and executives knew that some of their programming about the 2020 election was a sham. A Fox News victory in Davis’s courtroom, accordingly, could be seen as enshrining the media’s right to lie. An appropriate statement on the courthouse steps would be: We are the media, and we can smear anyone we please.
Supreme Court Justice Clarence Thomas has repeatedly stated his wish to revisit and possibly overturn Sullivan; Justice Neil M. Gorsuch has declared himself open to reconsidering it. It’s no coincidence that two conservative justices are so arrayed, considering that hostility toward Sullivan and the mainstream media is heady on the American right. Florida Gov. Ron DeSantis and like-minded state legislators, for example, have embarked on an initiative to undermine Sullivan.
Yet a Fox News victory in the case might well convince liberals, too, that the standard needs to go. If “actual malice,” after all, isn’t pliable enough to condemn Fox News’s conspiratorial treatment of Dominion, what good is this doctrine?
The truth, however, is that Sullivan is a form of constitutional safety net for networks that thrive on persistent falsehoods, including Fox News. Weakening the standard would complicate life for Fox News and actual news outlets — a legacy consideration for Murdoch as things head to trial.
Perhaps he should be more scared of winning than losing.