No Apologies for Fox's Costly Lies
Winning the battle. But still losing the war.
“The truth matters. Lies have consequences. Over two years ago, a torrent of lies swept Dominion and election officials across America into an alternative universe of conspiracy theories causing grievous harm to Dominion and the country,” a lawyer for Dominion Voting Systems declared yesterday.
“Today’s settlement of $787.5 million represents vindication and accountability.”
Maybe. But I can’t shake the feeling that even though Dominion has won the battle, the rest of us continue to lose the war.
The last minute settlement is one of the largest defamation settlements in U.S. history, and it comes after Fox News was serially humiliated by revelations that left its reputation in tatters.
“The settlement represents justice for Dominion,” tweeted David French, “but by no means does it cleanse Fox of its corruption. Liars must be fired. Viewers must be informed. The company must apologize.”
But none of that happened.
There was no apology, no admission, and no on air-retraction or correction. No has been fired. On the network last night, the settlement was barely acknowledged.
There will be no ultimate reckoning, no ruling that they behaved with actual malice, no punitive damages. Fox avoided six weeks of bad headlines and potential new bombshells. There will be no parade of Fox executives and hosts to the witness stand. No testimony from Rupert. No boozy appearances by Judge Janine. Fox just paid more than three-quarters of billion dollars so we wouldn’t have to see the sweaty cross examination of Sean Hannity.
So, for those of us who were hoping for a six-week Festival of Schadenfreude, it was a let-down. But the settlement was also unsatisfying for other, more substantive reasons as well.
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Consider Fox’s own response. In a statement that was probably vetted by several dozen lawyers, p.r. flacks, and C-Suite heavies, Fox delivered this remarkable piece of weaselly legerdemain.
Fox said it was “pleased” to have settled the case. “We acknowledge the Court’s rulings finding certain claims about Dominion to be false.”
Afterward, Dominion’s president and lawyers said that Fox had “admitted to telling lies about Dominion.”
No. They didn’t. That’s a comforting spin on the settlement, but Fox quite carefully admitted nothing; they simply acknowledged the existence of the judge’s rulings that certain claims were false.
The judge had found as a matter of law that it was “CRYSTAL clear” that Fox had lied about Dominion and the election. But Fox did not “accept,” or “admit,” that finding.
Fox didn’t say it lied. It didn’t say it pushed falsehoods. It didn’t say it regretted the errors. It didn’t say it was sorry.
It just said that the judge’s rulings were there.
Fox followed up that non-admission with the declaration: “This settlement reflects Fox’s continued commitment to the highest journalistic standards.
Which was such risible bullshit that CNN’s Jake Tapper couldn’t keep a straight face when he read it on the air.
But who can?
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Let’s be clear: As a business matter, the settlement is completely defensible. The lawyers for Dominion are not tribunes of democracy; they were serving the interest of their clients. Which they did spectacularly well.
The lawyers had to weigh the current value of $787.5 million in hand against the prospect of a bigger number three, four, five years down the road after appeals and delays. And jury trials are always risky, especially in the midst of a pandemic of disinformation, delusion, and division. So, it was a sound decision.
There are also more cases on the way. Dominion is still suing Newsmax and OAN, along with MyPillow guy, Mike Lindell, Overstock.com founder (and former CEO) Patrick Byrne, Rudy Giuliani, and Sidney Powell.
And here comes Smartmatic, which still has a multi-billion dollar suit pending against Fox News. “Dominion's litigation exposed some of the misconduct and damage caused by Fox's disinformation campaign,” the company said yesterday. ”Smartmatic will expose the rest."
Also: We will always have the massive document dumps. The emails. The texts.
The ones that told us that Tucker loathed Trump and considered him a demonic force; the attempts by Fox hosts to get their fact-checkers fired; the obsession with profits over telling the truth.
It’s all there on the record, and in the judge’s rulings: Fox’s cynicism, lies, and clear contempt for its own audience.
But…
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After the settlement Dominion lawyer Justin Nelson declared, “Today represents a ringing endorsement for truth and for democracy.”
I wish that were true. But it’s not really.
Dominion insisted that the money itself represents accountability. But even $787.5 million only goes so far. As legal analyst Harry Litman wrote yesterday afternoon:
“The money of course serves no public purpose. An apology would have been meaningful as part of national accounting for the Big Lie. That was a very big opportunity here, which now goes away. Not Dominion's fault--it's the adversary system for you-- but a shame.”
In other words, this is great for Dominion.
But the rest of us will have to wait for the accountability that has proved so elusive.
There’s no reason to think that this will cost Fox much of its audience; or that it will change have much effect on the network’s behavior. Tens of millions of Americans still believe the election lies; and the Liar in Chief is, once again, going to become a fixture in prime time.
In the immortal words of Don Draper: "It will shock you how much this never happened."
More Settlement Reaction
Business Insider: 16 takeaways from Fox News' historic $787.5 million settlement with Dominion
A person familiar with the settlement terms told Insider that Fox News' hosts — including Sean Hannity, Tucker Carlson, Jeanine Pirro, and Maria Bartiromo — would not be required to issue retractions or make any statements about Dominion whatsoever. Davis ruled that all of those hosts broadcast falsehoods about Dominion.
In other words: Fox doesn't admit to anything, except that the judge is right. Aside from forking over money, they get to do things on their own terms. The network's hosts don't have to tell their audience what they don't want to hear.
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The Guardian: ‘Dominion wins but the public loses’: Fox settlement avoids paying the highest price
The money from the settlement, one of the largest libel payouts in media history, was just the icing on a cake Dominion had, in many ways, already won.
And yet, while Fox doled out an unprecedented sum, they were able to avoid something priceless: the public humiliation of a trial and an apology….
But the lack of a six-week trial meant that Rupert and Lachlan Murdoch, Tucker Carlson, Sean Hannity, Maria Bartiromo, and Jeanine Pirro would not have to own up to their role in spreading dangerous misinformation after the 2020 election.
It suggests that lies, no matter how dangerous or insidious, are tolerable as long as you have the money to back it up. “You could argue that Dominion wins but the public loses,” Brian Stelter, the respected media reporter who has written extensively about Fox, tweeted after the settlement.
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David Graham, in the Atlantic: “Fox News Lost the Lawsuit but Won the War.”
Dominion’s choice to settle comes as a great disappointment to many critics of Fox, and is also probably a smart financial decision. For the critics, this case was about democracy and disinformation and provided an opportunity to hold Fox accountable for years of broadcasting hogwash. For Dominion, it was primarily about business. No matter how lofty the language its spokespeople used, the company didn’t sue to fix the American media landscape.
Imagine if the case had gone to trial, Dominion had won the full $1.6 billion, and then the matter had been caught up in years of costly appeals and wrangling. At best, Dominion would have been able to recover the money years from now; at worst, the award might have been reduced or thrown out altogether. Wiser to take the cash on offer. Whether or not Fox has to make some public apology, the network will presumably be very careful not to defame Dominion again.
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Jim Rutenberg and Katie Robertson in the NYT:
The one question that only time will answer is whether the settlement was enough to cause Fox News to change the way it handles such incendiary and defamatory conspiracy content. The amount is huge — $787.5 million. Fox News certainly doesn’t want to see a similar settlement anytime soon as other legal cases loom, notably a $2.7 billion suit from another election technology company, Smartmatic.
But Fox did manage to escape Dominion’s goal of an on-air admission or apology, meaning it did not have to force either on its audience, which did not hear much about the case on Fox’s shows to begin with.
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CNN’s Oliver Darcy: “The Big Lie came at a big price.”
The country suffered the consequences of Donald Trump's election lies on January 6th. And Rupert Murdoch suffered the consequences of those same lies on April 18.
But while it is the largest publicly known defamation settlement by a U.S. media outlet ever, the hefty price tag won't be enough to change Fox News at its core. The right-wing talk channel still sows doubt about the 2020 election to this day. And I'm told by sources that the settlement it reached with Dominion will not require its dishonest personalities to acknowledge reality and issue retractions on the air.
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NPR’s David Folkenflik and Mary Yang: “Fox News settles Dominion Voting Systems defamation lawsuit”
Even in settling and sidestepping an adverse verdict, Fox's reputation among its peers has already been shattered.
What Dominion uncovered in the investigative part of the suit — what's called discovery — revealed a world grounded in cynicism, hostility. From the top down, the Murdochs and Fox created a network defined by a relentless pursuit of ratings that placed profit above politics, and partisan advantage above any sense of journalistic obligation
The public's right to know the truth rarely earned a hearing.
Quick Hits
1. The Abortion Pill, the FDA, and Supreme Court
Kim Wehle, in today’s Bulwark:
The justices will have to decide whether to extend Alito’s decision to stay Kacsmaryk’s maneuver until the Supreme Court can thoroughly consider the issue, or instead do what it did pre-Dobbs by enabling Texas’s six-week abortion ban to take effect while it considered what to do with Roe v. Wade. Let’s hope Alito’s decision is a sign of a shift in the Supreme Court’s judiciousness.
2. My Friend, the Traitor
David Kramer in this morning’s Bulwark:
I have been friends with Vladimir Kara-Murza for many years. Along with Bill Browder and Boris Nemtsov, we advocated for the Sergei Magnitsky Rule of Law and Accountability Act, which imposes sanctions on Russian officials involved in gross human rights abuses. (A successor law, the Global Magnitsky Act, expands the sanctions to human rights abusers and corrupt actors anywhere, and is among the most noble ongoing policies the U.S. government has.) For his advocacy for that act, which became law in 2012, and for his overall criticism of Russia’s first invasion of Ukraine in 2014 and exposure of Russian corruption, Nemtsov was gunned down yards from the Kremlin in February 2015. Kara-Murza is paying his own price for similar support for the Magnitsky law and criticism of Putin’s second invasion of Ukraine, launched last February.
Cheap Shots
This is enormously frustrating. Anecdotally, I can tell you that Fox News viewing family and friends know almost nothing about this lawsuit outside of it being a "politically motivated" 1A challenge. They know absolutely nothing of the texts and emails showing that Fox News hosts and execs are lying to them. Fox News hasn't reported on it at all, and they only get their news from Fox.
The most severe consequences would have been their viewers learning that Fox thinks they are stupid, but that won't happen. By not having to even acknowledge their deception on the air, Fox News got a great return on this settlement.
It is hard for me to put my anger and frustration into words at the Fox/Dominion outcome. It feels like, yet again, the bastards won. What a colossal missed opportunity to begin a necessary cleaning of the sewer. By most accounts Fox was on the ropes, looking at an epic defeat and humiliation, to stretch out over time, in the eyes of the nation and the world. There was the prospect of real accountability for people who long have deserved it. And then, at 11:59:59, a reprieve. Suddenly it all goes away. We want to think that there will be lasting consequences for Fox, its executives, and its talking heads. We also know that most people have the attention span of a gnat and will forget about this by next week now that there is nothing more of substance to see.
Yes, Fox is paying a ginormous sum of money. But they will not miss it, as they recoup it over time. Yes, they are forced to admit that they made mistakes. But the acknowledgement of making “certain claims about Dominion [that were] false” is so watered down and generic that it makes 3.2 beer look like whiskey. Beyond those miniscule measures, what real consequences does Fox suffer? Who takes the fall for the errors? What sanctions do the on-air personalities face for knowingly and willingly spewing lies and manipulating their audience? In order: none (of significance), nobody (of importance), and nothing (at all). This is not a defeat for Fox. It is a momentary embarrassment, and the sanctions are a minor slap on the wrist. Likely all involved will merely be admonished with a modest order from above of “next time, be a little smarter.” What would happen to you or me if we engaged in similar behavior at our level? Yet again it appears that there is one set of rules that governs corporations and celebrities, and another, harsher set that the rest of us must face.
I can imagine the sound of champagne bottle corks popping at Fox at how little of substance they have to give up in order to get out from underneath this debacle of its own making. Good for them. Bad for the rest of us, who both face much more scrutiny and accountability in our daily lives and who continue to face the prospect of Fox being the Great Purveyor of Disinformation – next time just a little smarter about how to do it. Dominion looked out for its own bottom line and got what it wanted: a huge wad of cash and a soundbite that says that they were a victim. It is a business acting as a business. But I was hoping that they would see a civic duty in there somewhere and be the force that history books would cite as the one that finally broke open the cesspool and began to flush it out. It was a moment that was made for a patriot. Instead it has become about just another business defending its business interests, while another business will live to fight another day under its flawed business model and only a minor black eye to show for it. So much for change and optimism. Instead we rinse and repeat.