This followed accusations by Dominion Voting Systems that claimed Fox News had spread conspiracies that damaged the company. According to Jeremy W. Peters and Katie Robertson of The New York Times, “Dominion sued two years ago, after Fox aired false stories claiming that Dominion’s voting machines were susceptible to hacking and had flipped votes from President Donald J. Trump to Joseph R. Biden Jr.”
Recently, some of the lawyers involved in the case shared some of their insights and experiences on “So to Speak: The Free Speech Podcast,” produced by the Foundation for Individual Rights and Expression (FIRE). The episode can be listened to here: Dominion vs. Fox lawyers reflect on historic case
The settlement was announced right as opening arguments in the trial were set to begin.
The mere fact the case was set for trial was noteworthy.
“It is uncommon for defamation suits to get to trial, in part because the bar for proving ‘actual malice’ — the legal standard that requires plaintiffs to show that defendants knew what they were saying was a lie, or had a reckless disregard for the truth — is so high,” Peters and Robertson reported.
The case made it as far as it did because of the damning evidence that consisted of emails and text messages sent among some of the biggest names and high-profile personalities of the Fox News brand, which came about through the discovery process and highlighted how those individuals didn’t even believe the content they were peddling.
The legal filing can be read here: https://int.nyt.com/data/documenttools/redacted-documents-in-dominion-fox-news-case/dca5e3880422426f/full.pdf
Comedian and political commentator Jon Stewart, who now hosts “The Problem with Jon Stewart” on Apple TV+, wasn’t surprised. This was evident during a recent episode of his “The Problem” podcast — “Liar, Liar Network On Fire: The Legal Case Against Fox News.”
According to The Washington Post, the lawsuit came about due to a specific series of events that started on Nov. 3, 2020, when Fox News called Arizona for Joe Biden. The exclamation point was the Jan. 6, 2021, insurrection of the U.S. Capitol, followed by MyPillow CEO Mike Lindell’s appearance on Fox News where he claimed Dominion tampered with election results. He was given this platform on Tucker Carlson’s “Tucker Carlson Tonight.”
Of course, Carlson was fired in April 2023. No reason was given, but, according to New York Magazine’s Intelligencer, his misogyny and related lawsuits make up the predominant theory.
“Jeffrey Pyle, a First Amendment attorney and adjunct professor at Boston College School of Law, said the $787.5 million payment was one of the largest libel settlements he had ever encountered. Both sides would have faced risks if they had gone to trial, he said, with Fox facing the prospect of having to pay far more if it lost. Revelations in the courtroom might have caused ongoing damage to the network’s reputation.”
Still, the settlement took a bite out of the Fox News financial coffers. This seems to have prompted the network to seek higher carriage fees from cable and satellite providers for the ability to include the channel in their lineups, and those fees make up the bulk of Fox’s revenue, dwarfing its advertising income. According to Karl Bode at Vice, these fees amount to billions of dollars:
“Fox News makes $1.8 billion from the carriage fees it charges cable TV providers to include the channel in bloated, increasingly expensive cable TV bundles. But just 3 million of the nation’s 90 million cable TV subscribers actively watch the channel. In other words, 87 million Americans pay their cable company for and thus subsidize Fox News—despite rarely if ever actually watching the channel.”
The long-term implications for Fox News and its financial stability remain to be seen, but the Dominion case also highlights key considerations for the world of news and media.
Even though Fox News staffers reportedly don’t view the network as a news organization and there is no codified requirement for a business calling itself a news organization, this case not going to trial is good for journalism.
That’s because the lawsuit centered on defamation, and journalists and news outlets get accused of defamation — whether slander or libel — regularly. However, the 1964 U.S. Supreme Court case of “New York Times Company v. Sullivan” granted journalism protection from lawsuits when the accusations of defamation come from public figures who simply don’t like what is being reported, regardless of its truth and accuracy.
“In a 1964 case involving The New York Times, the U.S. Supreme Court limited the ability of public figures to sue for defamation. The court ruled that plaintiffs needed to prove that news outlets published or aired false material with ‘actual malice’ — knowing such material was false or acting with a ‘reckless disregard’ for whether or not it was true.”
If the Dominion case had gone to trial and Fox News had lost, which seemed to be well within the realm of possibilities, the decision could have irrevocably damaged the country’s standards of a free press and free expression by creating a situation where government interference could occur or one in which the rich and powerful can decide what speech is allowed, regardless of its veracity.
Mis- and disinformation hurt the democratic function of society, and Fox News has been accused of trafficking in such content. However, mistakes do happen. Journalists are human beings. Preserving the right for reporters to pursue the truth without fear of politically motivated attacks is crucial and is just one of the many reasons why the First Amendment exists.
“The larger importance of the settlement … is that the high level of protection for news media in a defamation case remains intact for now,” Doreen Weisenhaus, an instructor of media law at Northwestern University, told the AP.
Unfortunately, that keeps the door open for partisan actors to continue to spread mis- and disinformation via the airwaves and on the internet where they can tap into fragmented audiences who feed on divisive rhetoric.
This allows mis- and disinformation to continue to pollute the discourse of democratic societies. As such, individuals will continue to struggle to understand what news and information they can trust.
Hyperpartisan media will persist because these outlets leverage confirmation biases and echo chambers where “fake news” becomes whatever people on the other side of the political ideology spectrum say.
Based upon this, it should come as no surprise that people don’t trust each other and see democracy under threat. Their media diets lack nutrients and consist of opinionated content that satiates their hunger for being right and only consuming information they agree with.
“People who spend more time with messages that bolster their views are more likely to engage in political action, something that’s very desirable from a democratic point of view,” researcher Silvia Knobloch-Westerwick said in an article from Live Science.
Such messages are not always journalism, though. Journalism should provide the public with truthful and reliable news and information that allows individuals to make informed decisions.
Democracies need good journalism to serve as the watchdog over those in positions of power and influence. Doing so protects the citizenry.
If journalism is done ethically, then everyone benefits. However, journalism ethics are based on the honor system. As John C. Watson wrote for The Conversation, they “are wholly voluntary and can be set aside if they compromise profits.”
While the owners of these outlets get rich, everyone else suffers from a lack of trustworthy news and information. Polarization destroys trust in journalism, which hinders the ability of society to function.
This lack of trust leads to widening divisions in society, and partisan media organizations leverage this division in the pursuit of their audiences, the members of which aren’t worried about authenticity as much as they are worried about feeling included and validated.
Despite the fact some wish Fox News would have been required to do more than pay the settlement amount, the outcome ensures good, high-quality journalism can continue to exist, no matter who or what it holds to account.
Undoubtedly, combatting partisan media and the spread of mis- and disinformation will be an ongoing battle. Still, now journalism can stay in the fight thanks to the protections afforded by the First Amendment and U.S. Supreme Court precedents.
It will just take renewed attention and energy to confront these societal ills head-on to restore faith in journalism, which has been eroded by partisanship and polarization.
“Taking conservative news seriously—granting that it is, indeed, a form of journalism—destabilizes our traditional normative ways of thinking about news and journalism,” scholar A.J. Bauer said in an article for the Columbia Journalism Review. “[But] those categories are already thoroughly destabilized among the general public, and it’s long since time that journalists and scholars reckoned with this problem directly.”