Defamation — the slandering (spoken) or libeling (written) of another — is notoriously hard to prove in the United States, where you must demonstrate not only that the person lied about you but also knowingly or recklessly inflicted harm.
This is the famous malice clause, which became precedent in the 1964 case The New York Times Co. v. Sullivan. Legal experts have said that Dominion Voting Systems v. Fox News Network — which was slated to go to trial Tuesday, April 18, in Delaware Superior Court after a one-day delay that may have involved settlement talks — would have had equally far-reaching implications, not only for the First Amendment rights to freedom of speech and of the press but for the continuing conspiracy theories surrounding the 2020 presidential election. But Dominion and Fox settled out of court for a staggering $787.5 million, with Fox acknowledging the “court's rulings finding certain claims about Dominion to be false.” Yeah, and who made those claims?
Still, Dominion isn’t through suing and Fox isn’t through being sued. (Next up for Fox is Smartmatic, another voting system, and a $2.7 billion suit. ) Meanwhile, Dominion is suing Trump lawyers Rudolph Giuliani and Sidney Powell and Newsmax and OAN.)
Swept up in conspiracy theories, Dominion had charged Fox with defaming its reputation when it claimed that rigged Dominion voting machines helped hand the election to now-President Joe Biden. Fox had countered that it was merely reporting what guests on its programming asserted.
Judge Eric M. Davis, who had already ruled that Fox’s statements about Dominion were false before ordering the case to trial, has been praised for his evenhandedness. He dealt Dominion a blow when he told both sides to stay away from the Jan. 6 events that were in part the result of stolen-election claims. He also said that death threats against Dominion employees and other poll workers were not relevant to the case. (He himself has been threatened.). On the other hand, he was displeased with Fox’s attempts to suggest that Rupert Murdoch, whose News Corp. owns Fox, was not involved with the network. The next day, he censured Fox for withholding evidence.
In a case that would’ve seen a parade of Fox commentators and was being closely watched by the international press, jurors would no doubt have been asked to consider many questions, not the least of which were did Fox act maliciously if its only real intent was to drum up ratings by feeding its viewers the grievances they thrive on? And was the press responsible for the truth of opinions given in real time? These are questions that remain viable as the other suits go forward.
Benjamin Bradlee, the executive editor of The Washington Post in the Watergate era, once said that the press doesn’t report what’s true; it reports what people say is true. Perhaps. But in the era of fake news when real news is also mixed with various perspectives and biases, the standard has to be higher than that.
I never thought Fox deliberately set out to harm Dominion. I never thought Rupert Murdoch knew Dominion from Domino’s Pizza. But that’s also the point: I don’t think Fox cared about anything or anyone as it rode the tail of tiger Trump to ratings success. The question then became would that have met the definition of reckless malice?
I think it would’ve. In my 43 years in journalism, I have to say this was one of the best defamation cases I have ever seen. Which is why Fox settled for such an unprecedented amount.