No settlement yet as Dominion Voting Systems and Fox News head to trial

So today is the day that the Media Trial of the Century gets underway.

Probably. We think.

After a 24-hour delay that fueled rampant speculation that a settlement might be in the works, the $1.6 billion lawsuit against Fox News by Dominion Voting Systems is expected to get underway this morning in a Wilmington, Delaware, courtroom.

The delay, at least as of the writing of this newsletter, did not produce a settlement between the two sides. That means that unless there’s another postponement or a truly last-minute settlement, the trial kicks off this morning with jury selection followed by opening statements.

So was the delay really to allow the sides more time to negotiate a settlement? It would appear so, but how close the sides were (or are) is not known and, for the time being, they are headed to a jury trial.

A potential settlement, which still could happen at any time even after the trial begins, would involve a number of issues, but the biggest could be what Dominion would want monetarily. CBS News’ Scott MacFarlane reported Monday that Dominion and Fox are “hundreds of millions of dollars’” apart when it comes to estimating Dominion’s value and that is a clear roadblock to a settlement at this time.

That might not be the only obstacle. Dominion, you would assume, would want Fox News to apologize, but what that apology would look like isn’t clear.

There is incentive on both sides to settle. And reasons to not settle. Let’s look at the pros and cons for each side.

Why Dominion would settle

Many legal experts believe that Dominion has as strong of a case as they’ve seen when it comes to a defamation claim. So why settle?

Several reasons, not the least of which is that juries can be unpredictable. Beyond that, it could be that Dominion is confident that it will win, but not as confident in what the punitive judgment will be. Dominion might think a certain dollar figure guaranteed now is better than an unknown (and potentially lesser) number at verdict.

Why Fox News would settle

In a trial that could last as long as six weeks, Fox News potentially could get beat up. It could end up on the wrong end of negative headlines along the way, which it would want to avoid. A settlement also would mean that some of Fox’s biggest names — including founder Rupert Murdoch, other top executives, and on-air hosts Tucker Carlson, Sean Hannity, Laura Ingraham and Maria Bartiromo — would not have to give potentially embarrassing testimony.

If Fox News feels queasy about how a trial might end, maybe it figures it would be better to swallow its medicine now instead of having a story full of negative PR drag out for weeks and still end in devastating fashion.

There’s also a chance the penalties could be even worse than what Dominion is asking for.

Why Dominion would not want to settle

Most legal observers familiar with these kinds of cases feel Dominion will win. So why settle when proving its case to a jury might be more consequential? If the two sides can’t agree now on what Dominion should receive in damages, Dominion might believe it’s better to go for the whole $1.6 billion in trial than a lesser amount in a settlement.

Why Fox News would not want to settle

If Dominion’s settlement demands are too much, why not roll the dice with a jury? Many of the pretrial discoveries through depositions and internal communications have already proven embarrassing for Fox News, so Fox could say, “How much worse can it get?”

There’s also this: Maybe Fox genuinely believes it can win. Or, at the very least, maybe the network thinks it won’t end up being on the hook for anywhere near $1.6 billion dollars.

No cameras

As a reminder, cameras will not be allowed in the courtroom of this trial. Nor will any electronic devices.

CBS News’ Scott MacFarlane reported, “For those worried this will be a spectacle, keep in mind that this will be a spectacle that will be largely invisible. No court cameras in the courtroom. No electronic devices that could communicate out (of) to the courtroom. … So when the superstar witnesses take the stand — possibly Rupert Murdoch, Sean Hannity, Tucker Carlson — they won’t be doing so to a mass audience. It may just be people already dialed into this issue and already have opinions on this issue. That’s part of the leverage Fox brings to a possible trial starting (today).”

In addition, NewsNation’s Brian Entin reports that a tent has been erected in the rear of the courthouse. That means high-profile witnesses might be able to drive under the tent and enter the courthouse without being photographed or seen by the media.

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Interesting timing

On Monday, when the trial was supposed to begin, Fox News took out full-page ads in The New York Times and The Washington Post.

The ads show a graphic with the headline: “Trust Now. More Than Ever.” It then lists a poll that combines what networks viewers watch and which ones they trust, so the results are a bit misleading. According to this chart, Fox News is the most trusted TV network for news at 41%, ahead of ABC, CBS, CNN, MSNBC and NBC.

You have to give Fox News credit for having the gall to take out such an ad just as it is getting ready to defend itself against a $1.6 billion defamation suit that many legal experts are predicting it will lose.

Fox News-Dominion tidbits and links

• The Washington Post’s Erik Wemple with “Why settling the Dominion lawsuit is so imperative for Fox News.”
• New York Times reporter Nick Confessore appeared on MSNBC and told Katy Tur that there’s one possible reason why Fox News might not settle: “If they go to trial and lose, it’s possible, yes, a court could order an apology or a settlement could include some kind of apology. I think that will be a hard thing for Fox to swallow; they would presumably have to go on the air and have their prime-time hosts who peddled these lies say, ‘I lied to you, I was wrong. I knew it was wrong. I’m sorry.’ It’s hard to imagine that — it would be catastrophic for the network, for any network. I think that’s part of why there’s resistance.” Then again, it’s hard to believe Dominion would agree to a settlement without getting on-air apologies. (Mediaite’s Jennifer Bowers Bahney has more on Confessore’s MSNBC appearance.)
• CNN’s Eric Levenson and Marshall Cohen with “Here are the 20 specific Fox broadcasts and tweets Dominion says were defamatory.”
• Northeastern journalism professor and media observer Dan Kennedy with “Landmark case? In fact, Dominion’s libel suit against Fox News is pretty simple.”

Journal reporter receives visit

For the first time since being detained in Russia three weeks ago, Wall Street Journal reporter Evan Gershkovich was able to be visited by U.S. officials. Gershkovich is being charged with espionage — a charge the Journal and the U.S. government vehemently deny.

In a statement, U.S. Ambassador to Russia Lynne Tracy said, “He is in good health and remains strong. We reiterate our call for his immediate release.”

The Wall Street Journal’s William Mauldin and Ann M. Simmons have more.

CBC’s Twitter stance

Add Canada’s CBC as the latest news outlet to step back from Twitter after the social media company labeled it as “government funded.” The CBC tweeted, “Our journalism is impartial and independent. To suggest otherwise is untrue. That is why we are pausing our activities on @Twitter.”

It added the same message in French.

Last week, NPR, PBS and the BBC all were labeled as “government funded” and all three announced they would no longer tweet from their official Twitter accounts. Individual journalists at those organizations can do as they please when it comes to tweeting.

In a statement on the CBC website, company spokesperson Leon Mar said, “Twitter can be a powerful tool for our journalists to communicate with Canadians, but it undermines the accuracy and professionalism of the work they do to allow our independence to be falsely described in this way.”

In the same report on the CBC website, CBC News editor-in-chief Brodie Fenlon said, “It is important to take a moment to assess what Twitter has done. That is why we have pressed pause today on our accounts. Our journalistic independence is the cornerstone of who we are as a public broadcaster. Suggesting otherwise is inaccurate and untrue.”

Post contributor sentenced to lengthy prison term in Russia

Vladimir Kara-Murza, an opposition politician and Washington Post Opinions contributor, has been sentenced to 25 years in prison by a Russian court. He was charged with treason for criticizing Russia’s war on Ukraine.

The Post’s Robyn Dixon wrote, “The closed trial further highlighted Russia’s isolationist path, as President Vladimir Putin has disregarded Western criticisms of Russia’s human rights abuses and moved to brutally destroy any remnants of his country’s pro-democracy opposition.”

In his final statement before sentencing, Kara-Murza said, “I’m in jail for my political views. For speaking out against the war in Ukraine. For many years of struggle against Putin’s dictatorship. Not only do I not repent of any of this, I am proud of it.”

For details on Kara-Murza, his case and his political views, be sure to check out Dixon’s well-reported and all-encompassing story. Also, it’s Jennifer Hassan and Annabelle Timsit with “Who is Vladimir Kara-Murza, the Putin critic sentenced to 25 years?”

Live hit of the day

It’s quite common for ESPN reporters to do live reports from the road and, because of morning shows and time differences, occasionally they do early-morning live appearances from their hotel rooms.

That’s what ESPN NBA reporter Brian Windhorst was doing Monday morning until a hotel guest next door had an issue. Windhorst was in his Phoenix hotel room, where it was 6:49 a.m. when he was making an appearance on ESPN's “Get Up.” Apparently the person next door to Windhorst didn’t want to, uh, get up.

Windhorst was asked on air why he was whispering, and he said, “We all have adverse situations, and apparently someone in the hotel room next to me was not a ‘Get Up’ viewer. And not happy about the early wake-up call here in Phoenix, and let’s just say that messages have been delivered, not in a soft manner.”

While the “Get Up” personalities on set back in New York were laughing, Windhorst was asked if the guest next door complained to the manager. Windhorst said, “This individual did not contact the manager. But their point was made very strongly. So, I’m trying to respect my neighbors here in Phoenix.”

Awful Announcing’s Brandon Contes has more, including video.

Media tidbits

• Semafor’s Max Tani reports that Gannett news division president and USA Today editor-in-chief Nicole Carroll is stepping down, according to a note to staff. Michael McCarter is the interim editor-in-chief. More on this in the coming days.
• My Poynter colleague Amaris Castillo with “How a Philadelphia Inquirer reporter found nuance in a local ‘Rachel Dolezal situation.’”
• Variety’s Brian Steinberg with “CNN’s ‘News Central’ Has Anchors Learning New Daytime TV Dance.”
• Digiday’s Kimeko McCoy with “The fate of Black Twitter remains unclear after Elon Musk’s platform takeover.”
• NOLA.com’s Stephanie Riegel with “Loyola student journalist disciplined for recording interview with campus police.”

Hot type

• Jewish Insider’s Gabby Deutch with the first of a five-part investigation into the ripple effects following the killing of a beloved figure in “Who Killed Kesher’s Rabbi?”
• The New York Times’ Edgar Sandoval reports from Uvalde, Texas, in “Two Children, a Burst of Gunfire and the Year That Came After.”
• Sports Illustrated’s Emma Baccellieri with “A Decade After the Boston Marathon Bombings, She’s Helping Others to Run, Surf and Dance.”

More resources for journalists

• Subscribe to Poynter’s Friday newsletter, Open Tabs with Poynter managing editor Ren LaForme, and get behind-the-scenes stories only available to subscribers.
• Telling the Stories of Faith and the Faithful — New York City, May 12 (Seminar) — Register by April 21.
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• Editorial Integrity and Leadership Initiative — (Sept. - April, 2024) (Hybrid) — Apply by May 15.

Have feedback or a tip? Email Poynter senior media writer Tom Jones at [email protected].