It’s hard to believe that it was only one week ago today that we buckled up for what was to be the media trial of the century — a six-week showdown between Dominion Voting Systems and Fox News with $1.6 billion and, perhaps, the First Amendment at stake.
It was over before it really even started with the two sides reaching a settlement. Fox News will pay Dominion $787.5 million.
Last week, we asked our readers if there were any leftover questions from this case and they responded with two main themes.
The first was phrased this way by one Poynter Report reader: “If this had gone to trial, could you have pictured a scenario where New York Times Co. v. Sullivan got overturned?”
I asked my colleague Kelly McBride — Poynter’s senior vice president and chair of Craig Newmark Center for Ethics and Leadership, as well as the public editor for NPR — to answer this question. Here is what she wrote:
Unlikely. In the Dominion case, both sides agreed that actual malice was the standard by which the case should be decided.
A quick primer on actual malice: In New York Times v. Sullivan, the Supreme Court said that in order for public figures like Dominion to claim they were libeled and defamed by someone publishing false information, they had to prove that the person who published the content actually knew that it was false, or had substantial doubts it was false and then published it anyway. It’s all about what was in the decider’s head.
Many conservatives, like Florida Gov. Ron DeSantis, believe this standard is almost impossible to prove and sets the bar too high for determining libel of a public figure. (This only applies to very powerful people like elected officials. Private people simply have to prove that a journalist was negligent in publishing false information.)
The only way Sullivan could have been overturned was if Fox beat the “actual malice” standard at the jury level, meaning that Dominion couldn’t convince the jury that the Fox anchors actually knew the statements were false. If Dominion appealed all the way up to the Supreme Court, they may have argued that if the evidence they produced in discovery doesn’t prove actual malice, then it is an impossible standard. To strip “actual malice” from the libel laws, the justices would have to do two things: One, agree with the lower court’s ruling that Fox clearly did broadcast lies about the 2020 election. And, two, decide that Dominion shouldn’t have to prove the state of mind of the anchors and producers at Fox who decided to air the lies.
In theory, the justices are apolitical. But in practice, that doesn’t seem to be the case these days. Justice Clarence Thomas and Justice Neil Gorsuch are the two voices on record as open to overturning the actual malice standard. Would Thomas sign on to a ruling that directly hurts Fox and concedes that the 2020 election was not stolen from Trump? Would four other justices do so? Anything is possible, but it’s hard to imagine what the coalition would be.
If Fox had lost the jury trial and then appealed, the justices would have had to make the bar for actual malice even higher, in order to reverse the jury verdict. Or, they would reverse the ruling on some other grounds, rather than the actual malice standard.
My thanks to Kelly McBride for that answer.
Here’s a question we got from Facebook: “By settling its defamation suit, Fox has escaped being held accountable for publishing malicious stories that they knew to be untrue, that harmed individuals and also harmed my community at large. Even in its silence, the courts have set this outcome as the legal standard for publishers and journalists. Can publishers and journalists also lie to me whenever they feel like it?”
Let me try to answer that by first saying that Fox News really didn’t escape accountability. While there was no public apology that many wanted, Fox News did pay an incredible figure — more than $787 million, which is believed to be the largest publicly disclosed monetary settlement ever in an American defamation action, according to The Washington Post. The judge in the case, as well as Fox’s own statement, acknowledged that Fox News aired lies about the 2020 presidential election.
Diehard Fox News viewers likely will continue to watch it. And those who don’t like Fox News will continue to dislike it. But this Dominion case is a dark and embarrassing era for the network and its reputation was shredded — likely beyond repair for most news observers.
So, no, publishers and journalists cannot lie whenever they feel like it. As Dominion has shown in this case, there are major costs for the kind of irresponsibility we saw from Fox News.
Finally, several readers reached out with some version of this question:
Why didn’t Dominion demand an apology from Fox News?
I’ll let John Poulos, co-founder and the chief executive of Dominion Voting Systems, answer that one. In a guest essay for The New York Times, Poulos wrote about the settlement agreement. He wrote, “What was missing was an apology, so I myself drafted one for it that I thought would be appropriate to include. When I read it to my business partner, he asked what I thought about mandating Fox issue an apology that would be forced, insincere and limited. At that moment, I threw my draft in the garbage.”
Poulos wrote that Fox News acknowledged what Dominion needed Fox to acknowledge: spreading false claims comes with a huge price tag.
“Even so,” Poulos wrote, “nothing can ever fully compensate for what happened. The stain on my company’s reputation and our employees’ and customers’ emotional scars can only fade. They won’t ever vanish. If we could, we would trade it all in a heartbeat to go back in time to get our reputation back. But I take solace in the fact that the public has seen the enormous mountain of evidence proving what Fox did, and Fox paid dearly for it.”
One more question
The Associated Press’ excellent media reporter David Bauder addressed one other question in his story, “Will Fox settlement alter conservative media? Apparently not.”
Bauder writes, “Experts doubt the settlement will lead to much of a course correction in conservative media, save for a little less specificity to avoid future lawsuits.”
Bauder has a slew of details in his story, which I strongly recommend.
An incitement of violence
Appearing on Sunday’s “Inside with Jen Psaki,” New York Democratic Congresswoman Alexandria Ocasio-Cortez said it “would have been better” if the Dominion-Fox News trial had gone to verdict.
Ocasio-Cortez told Psaki, “What would have been best for the country, would have been to demand (an apology) and to not settle until we got that.” She added, “We have very real issues with what is permissible on air. We saw that with Jan. 6 and we saw that in the lead-up to Jan. 6 and how we navigate questions — not just a freedom of speech but also accountability for incitement of violence. This is the line that we have to really explore through law as well.”
Ocasio-Cortez said, “When you look at what Tucker Carlson and some of these other folks on Fox do, it is very, very clearly incitement of violence. Very clearly incitement of violence.”
The consequences of right-wing media
The grandson of the white Kansas City man who shot a Black teenager for knocking on the wrong door said he “wasn’t shocked” when he heard the news, adding, “I believe he held — holds — racist tendencies and beliefs.”
Andrew Lester, 84, shot 16-year-old Ralph Yarl in front of his door two weeks ago. Yarl was trying to pick up his younger siblings, but knocked on 1100 NE 115th Street instead of 1100 NE 115th Terrace. Lester has been charged with two felonies. Yarl is recovering at home.
Among the disturbing comments Lester’s grandson, Klint Ludwig, made to CNN about his grandfather was that right-wing TV was often “blaring in his living room.” He said he and his grandfather drifted apart after his grandfather embraced many of the conspiracy theories often stoked by right-wing media, including false conspiracies about elections, COVID-19 and Dr. Anthony Fauci.
Ludwig said, “He couldn’t handle being pushed back on, and at a certain point, we kind of lost touch. I think it was more of his choice than mine.”
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