Delaware Superior Court Judge Eric Davis today announced a last-minute settlement of the defamation case pitting Dominion Voting Systems against Fox News, which repeatedly aired statements that falsely implicated the company in a criminal conspiracy that supposedly denied Donald Trump a second term. Dominion sued Fox in 2021, seeking $1.6 billion in damages, and the trial had been scheduled to begin this week. Justin Nelson, a lawyer for Dominion, said the settlement includes a $787.5 million payment from Fox.
"The truth matters," Nelson said outside the courthouse. "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."
Fox more or less agreed. "We are pleased to have reached a settlement of our dispute with Dominion Voting Systems," it said in a press release. "We acknowledge the Court's rulings finding certain claims about Dominion to be false. This settlement reflects FOX's continued commitment to the highest journalistic standards. We are hopeful that our decision to resolve this dispute with Dominion amicably, instead of the acrimony of a divisive trial, allows the country to move forward from these issues."
Even as Fox acknowledges a judge's determination that it repeatedly aired "false" allegations about Dominion, it claims to be upholding "the highest journalistic standards." Surely that means it will set the record straight. Not according to The Hill's Dominick Mastrangelo, who reports that a "source with knowledge of the Fox/Dominion settlement says the network will not be required to issue any on-air retractions or apologies as part of the deal."
This settlement is nevertheless a humiliating outcome for Fox. Although $788 million is less than half the damages Dominion initially sought (an amount Fox described as "wildly inflated"), it is pretty close to the sum the company seems to have had in mind more recently. "The original Dominion complaint," Fox noted in a press release yesterday, "states that the 'lost profits' figure is 'not less than $600,000,000,'" but Dominion "is no longer pursuing it, knocking more than a half a billion dollars off their damages claim." If so, Fox has agreed to pay nearly four-fifths of the revised figure.
Worse, Fox for months had insisted it would continue fighting the case as a matter of principle, notwithstanding a string of embarrassing revelations and adverse rulings. "Dominion's lawsuit is a political crusade in search of a financial windfall, but the real cost would be cherished First Amendment rights," Fox said in an emailed statement on Friday. "While Dominion has pushed irrelevant and misleading information to generate headlines, FOX News remains steadfast in protecting the rights of a free press, given a verdict for Dominion and its private equity owners would have grave consequences for the entire journalism profession."
Dominion argued that Fox repeatedly gave a forum to election conspiracy theorists such as Sidney Powell and Rudy Giuliani even though it knew their claims were false. The company also noted that some hosts implicitly or explicitly endorsed the allegations against Dominion, as Fox Corporation Chairman Rupert Murdoch acknowledged in a deposition.
As Davis noted when he rejected Fox's motion for summary judgment on March 31, Fox guests and hosts claimed that "Dominion committed election fraud"; that it "manipulated vote counts through its software and algorithms"; that it was "founded in Venezuela to rig elections for dictator Hugo Chavez"; and that it "paid kickbacks to government officials who used [its] machines in the Election." Davis said it was "CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true." He added that the statements were "defamatory per se," because they "strike at the basic integrity of [Dominion's] business" and "seem to charge Dominion with the serious crime of election fraud."
Fox argued that it was merely reporting newsworthy allegations by the president and his representatives. But Davis rejected that "neutral report privilege," saying it was not available under applicable case law. "Even if the neutral report privilege did apply," he added, "the evidence does not support that [Fox News] conducted good-faith, disinterested reporting."
Fox also argued that its presentation of Powell and Giuliani's allegations qualified as a "fair report" about judicial proceedings. That privilege, Davis ruled, "fails to shield Fox from liability" because only one of the challenged statements referred to a pending lawsuit, and that broadcast went beyond reporting on the case by asserting its "underlying facts."
Davis likewise was unimpressed by Fox's argument that statements by hosts like Lou Dobbs, who repeatedly lent credence to Powell's claims, were constitutionally protected expressions of opinion. Not so, said Davis. In an appendix, he went through all the relevant broadcasts, showing that statements Fox described as opinions included assertions of fact or were based on supposed evidence that neither Powell nor Giuliani ever produced.
Davis' ruling left Fox with one last line of defense: that it did not air the false and inherently defamatory statements about Dominion with "actual malice," meaning it did not know the statements were false or recklessly disregard that likelihood. But as Davis noted, Dominion had uncovered evidence that many people at Fox either were skeptical of the claims about the company or dismissed them outright.
Ten days after the election, Fox's fact-checking "Brainroom" said there was "no evidence of widespread fraud" and "no credible reports or evidence of any software issues." It added that "claims about Dominion switching or deleting votes are 100% false" and called assertions about supposedly deleted Trump votes "mathematically impossible."
Six days later, Murdoch privately called the story "really crazy stuff." That same day in a text conversation with fellow Fox News host Laura Ingraham, Tucker Carlson flatly stated that "Sidney Powell is lying." Ingraham agreed that Powell could not be trusted: "Sidney is a complete nut. No one will work with her. Ditto with Rudy." In a deposition, Fox News host Sean Hannity said he "did not believe" Powell's claims "for a second."
In response to a post-election tweet about "vote dumping" from Maria Bartiromo, fellow Fox News host Bret Baier* told Jay Wallace, president and executive editor at Fox News and Fox Business, "none of [it] is true as far as we can tell." In a December 1 email, Baier said Powell's claims "can't be remotely true." Lucas Tomlinson, another Fox reporter, responded that the allegations were "100% not true" and "complete bullshit."
Gary Schreier, second in command at Fox Business, "believed the allegations were false at the time of airing," Davis noted. John Fawcett, an associate producer for Lou Dobbs Tonight, told colleagues that Powell seemed to be "doing lsd and cocaine and heroin and shrooms." In a text to Dobbs, Fawcett suggested that Powell "could be losing her mind." He noted that her story "doesn't make sense" and added, "I just don't think she is verifying anything she is saying." Tiffany Fazio, executive producer of Hannity's show, called Giuliani's account of systematic election fraud "comic book stuff."
Notwithstanding those behind-the-scenes doubts, Fox argued that it was reasonable to keep giving Powell and Giuliani a forum until it was clear that they had no evidence to support their claims. In Fox's telling, that happened by mid-December, when presidential electors cast their ballots. But in light of the internal communications highlighted by Dominion, the jury might reasonably have concluded that the reckoning could and should have come sooner.
*CORRECTION: Bret Baier's first name was misspelled in the original version of this post.
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