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It was over before it started. A freshly empaneled jury — and throngs of reporters — broke for lunch anticipating six weeks of trial, only to discover the parties had reached a settlement. The price tag? A staggering $787.5 million.
The deal ends a legal fight that began in March 2021 when Dominion sued Fox News for $1.6 billion, alleging the cable channel knowingly amplified “radioactive falsehoods” about election fraud made by Donald Trump and his supporters. Internal Fox News documents obtained by Dominion revealed panic over losing the MAGA audience in the wake of Trump’s defeat. Company leaders chose to undermine the credibility of U.S. elections rather than risk the wrath of viewers.
I insisted from the outset that this case was fated for settlement. Fox News had too much to lose and Dominion too much to gain. But the case persisted, limping along to trial despite Judge Davis’ evisceration of Fox’s legal defenses weeks earlier. When a judge calls your evidence “crystal clear,” that puts cartoon dollars signs in your eyes as a plaintiffs’ attorney.
Given that gale force winds were at its sails, it’s unlikely that Dominion blinked first. I’ll leave it to others to speculate why Fox softened at the last possible moment, but a week earlier it quietly settled an election fraud defamation suit with a Venezuelan businessman, indicating that it was more flexible than steadfast — if the price was right.
Prior to settling, nothing about the network’s approach to the case made sense. If $787.5 million was on the table now, it certainly was a year ago. Fox’s inability to see the writing on the wall led to the revelation of hundreds of embarrassing texts and emails to the public. It was a loser case from the get-go, and as First Amendment scholar Matthew Schafer opined, not even a particularly interesting one from a legal perspective.
There’s a legal saw: “If you don’t have good facts, pound on the law. If you don’t have good law, pound on the facts. If you don’t have either, pound on the lectern.” Fox spent the better part of the past two years body slamming the lectern, crying that the “foundational right to a free press is at stake” while the rest of the media yawned.
Even after ponying up enough dough to allegedly buy out Bill O’Reilly 31 times, the network had the temerity to crow: “This settlement reflects Fox’s continued commitment to the highest journalistic standards.” Reader, be careful not to roll your eyes so hard they get stuck.
It’s reasonable to be disappointed that Fox wasn’t forced to apologize on-air. But if you’re looking for justice in an American court, you’re in the wrong place. The civil legal system, like love, means never having to say you’re sorry. Courts make claimants whole with one thing: money. So while Dominion didn’t go the extra mile and provide the public with six weeks of primetime Fox humiliation, money talks. Dominion would have been foolish to turn that offer down and has every right to claim vindication. As I’ve said before, personal injury lawyers may be the heroes we deserve, but sadly they are not the ones we need right now.
Besides, Fox News isn’t out of the woods yet. It faces an equally daunting lawsuit in New York filed by another voting technology company, Smartmatic, that it said even wackier things about. Plus investor lawsuits. The Dominion case was like a fullback, blowing a hole through Fox’s defense that future litigants can run through. If it was willing to pay $787.5 million not to go to trial with Dominion, imagine what it might spend to fend off the rest of the claimants — better keep that checkbook handy, Rupert.
There is also the potential for a fresh round of litigation between Fox News and its insurers. We won’t know for sure how much of the Dominion bill the company foots itself until it shows up in an earnings report filed with the SEC, but typically corporations pay hefty premiums for policies that are intended to cover legal damages. Unsurprisingly, insurers aren’t exactly thrilled about paying out on these claims and often argue the situation falls outside of the policy for one reason or another. (See both Gawker’s slam by Hulk Hogan and the beef over ABC’s “pink slime” coverage.)
Ultimately, the decision to settle the Dominion dispute likely reflects that Fox’s chief concern is damage to its brand, not its coffers.
The game that Fox News has played over the past few years is to have one strategy on TV and another in court, not unlike the kayfabe in pro wrestling. When Tucker Carlson accused Karen McDougal of extorting Trump, the network beat a defamation suit by arguing his show isn’t factual. The case was dismissed before any documents or testimony could be obtained, allowing Tucker and Fox to preserve their facade. WWE wrestlers like Hulk Hogan (real name: Terry Bolea) used to take great pains to never let viewers see them as their real selves, to the point where Bolea had to explain to a jury why Hulk has a larger penis than Terry (in reference to an interview he gave in character) in his invasion of privacy suit against Gawker Media. Fox has always said “we’re the real news” but, just like in pro wrestling, the talent behaves differently when they’re off the clock. This case tested the entire edifice of cable news kayfabe. Fox News viewers are not sealed off from the internet. Once the fourth wall is broken, you can’t get it back.
With an estimated $4 billion of cash on hand, even without insurance these lawsuits are financially survivable. Losing the MAGA audience, however, is an existential threat.
Daniel Novack is a publishing industry attorney and chair of the New York State Bar Association Committee on Media Law.
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