Should Dominion Voting Systems Have Settled With Fox?

Yes. Despite howls on the left, a trial would have brought diminishing returns. And the pressure on NewsCorp is still unrelenting

We are definitely in the realm of hot takes today, but when I take a minority position, sometimes I like to ride that puppy for all it is worth. Do you know someone who would like this article? Then please:

Tucker Carlson in 2021 at Turning Point USA’s AmericaFest in Phoenix, Arizona. Photo credit: Wikimedia Commons/Gage Skidmore

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Yesterday afternoon's news was not unexpected: Dominion Voting Systems and Fox Corp had reached a settlement in a seismic defamation case. The trial, brought in Delaware Superior Court in New Castle, DE, pitted the wealthy against the wealthy, a maker of computerized ballot boxes against a right-wing network. The charge? That Fox’s so-called ”talent”—Tucker Carlson, Laura Ingraham, Maria Bartiromo, and Jeannine Pirro, former host Lou Dobbs, and numerous guests—had disseminated conspiracy theories about the 2020 election that they knew to be false and that hinged in part on lies about Dominion and other computerized voting machine manufacturers. 

Of course, the conspiracy theories about the 2020 election that Fox hosts and guests disseminated built on pre-existing lies that they have been telling for decades. This alternative universe is precious to Fox News listeners, who thrill to the idea that America is in thrall to shadowy elites. What is interesting is that this audience cares more about the lies than they do about the celebrity faux journalists who tell them.

The relevant lies in the defamation case that just settled range from charges that Dominion had switched or deleted as many as 2.7 million votes for Trump nationwide, and that the company (owned by private equity firm Staple Street Capital) was backed by investors like the Pelosi and Feinstein families, and the Clinton Global Initiative. Then there were accusations that Dominion was a front for Smartmatic (another voting systems company with a pending lawsuit against Fox Corp), Antifa, and the government of Venezuela (which had created a backdoor code so that communists led by Hugo Chávez, who is actually dead, could fiddle with the outcome of the election.)

These stories would be hilarious if they hadn’t actually fomented an attempted coup d’état on January 6 or were not currently stoking the fantasy that Donald Trump is still president. Fox Corp tried to mobilize a First Amendment defense, but here's the problem: neither free speech or freedom of e press cover malicious lies. (They also don't protect child pornography or speech intended to provoke violence, in case you were wondering.) And while it is often hard to prove that a news outlet is deliberately lying, as opposed to making mistakes or "reporting the news" (Fox's feeble defense), in this case, they were. 

Dominion cited 774 statements made by Fox hosts and guests after the election that portrayed the election as fraudulent and implicated their equipment and software. They also showed that executives who supervise the news operation knew their talent was lying. When CEO Rupert Murdoch was deposed in January, he admitted that he knew his employees lied on air ("a lot," he elaborated when asked about Lou Dobbs.) When asked if executives had "an obligation to prevent [Sidney Powell] from coming on [Lou Dobbs' show] to tell those lies," Murdoch agreed that they did. 

Yet, there is ample evidence that executives did the opposite: they asked for the lies. As their audience fled to NewsMax and One America News (OAN) after Fox truthfully called Arizona for Biden, they panicked and went all-in on Trump. As megastar pundit Tucker Carlson raged on November 5, referring to the Fox Election Desk’s failure to retract the truth about Arizona: "We worked really hard to build what we have. Those f*****s are destroying our credibility. It enrages me."

Even so, documents released during discovery last week showed that, ten days after the 2020 election, fact-checkers sent a new warning: conspiracist claims being promulgated on Fox by the Trump campaign's Island of Misfit Toys were false. These poor, beleaguered workers,known as "the Brain Room" (perhaps to distinguish them from the on-air talent) told their bosses:

FACT. Claims about Dominion switching or deleting votes are 100% false. Dominion systems continue to reliably and accurately count ballots, and state and local election authorities, as well [as] fact checkers, have publicly confirmed the integrity of the process.

FACT. Dominion has no company ownership relationships with any member of the Pelosi family, the Feinstein family, or the Clinton Global Initiative. Dominion works with all political parties; our customer base and our government outreach practices reflect this nonpartisan approach.

They also rebutted Donald Trump's claim that Dominion Voting Systems had deleted or swapped millions of votes, which Fox was continuing to report as if it was news: "There's no evidence of widespread fraud in the 2020 election, or of major problems with Dominion's systems,” the Brain Room insisted. “Election officials have stated publicly that the election went well, and international observers confirmed that there were no serious irregularities."

So executives at Fox Corp did not just know about the lies; they refused the truth. And they refused to do the one thing they might have prevented this lawsuit: reprimand their hosts, and refuse to allow guests who were lying to appear on the network.

This legal Fox Hole, as it were, became even deeper on April 15. During pretrial motions, Dominion asked Judge Eric Davis to stipulate that Fox had deliberately told falsehoods about Dominion, and he did. This meant that the jury, which was to be picked the following Monday, would have been told that it was an indisputable fact that Fox News lied about Dominion and that the jury's only job would be to prove "malice."

At this point, many in the broad anti-Trump coalition were jubilant. They fantasized that Fox could lose the whole megillah and that the $1.6 billion judgment Dominion was asking for could even take Fox News off the air. Although this was neither realistic nor desirable (do we really want to expose news outlets to financial destruction through a weaponized court system?), disgust over Dominion deciding to settle the case is now rampant. 

As usual, serial MSNBC guest and Nation columnist Elie Mystal captures and embodies the spirit of this outrage. "I completely get why Dominion made this settlement and if I were their lawyer I probably would have told them to take the money," Mystal fumed on Twitter, "But I'm NOT their lawyer and so I can also recognize that this is a cop out and why once again we should NEVER expect corporations to save us."

"For Fox, this is a `victory,'" former RNC chair Michael Steele, also an MSNBC commentator, tweeted, "because the anchors who promoted the lies won't be held accountable; the owner who ok'd the lies will pay Dominion what amounts to a `rounding error' and the viewers who consumed the lies will never be told otherwise."

True, one feature of such a settlement is that the defendant does not have to publicly admit guilt, which rankles many. "There was no apology, no admission, and no on air-retraction or correction," wrote Never Trumper Charlie Sykes at The Bulwark. "No one has been fired. On the network last night, the settlement was barely acknowledged." Sykes continued:

There will be no ultimate reckoning, no ruling that they behaved with actual malice, no punitive damages. Fox avoided six weeks of bad headlines and potential new bombshells. There will be no parade of Fox executives and hosts to the witness stand. No testimony from Rupert. No boozy appearances by Judge Janine. Fox just paid more than three-quarters of billion dollars, so we wouldn't have to see the sweaty cross-examination of Sean Hannity.

But here is my question: was it realistic to hope for any of these things in the first place? How many court cases deliver the satisfaction that the Dominion case was said to promise? Would forcing Tucker, Laura, Maria, and Lou to read on-air confessions have ever changed history? Would it have shored up democracy?

No. What we got out of this was just fine. We got the truth. On top of that, through discovery and deposition, the details about Fox's fraudulent business model have been revealed, which Hootan Yagoobzadeh of Staple Street Capital said was a precondition for ending the litigation. 

Mystal is correct—we shouldn't expect corporations to save us, but he is incorrect that Dominion has somehow betrayed us. Settling is not a "cop out," nor—as some have speculated—a sign that all Dominion and Staple Street Capital wanted from this case in the first place was money. It costs money to fight a case, money that you are not guarateed to get back. It’s about as shitty an investment as you can make.

Furthermore, most civil cases do settle out of court. Defamation cases against journalism outlets are even more likely to settle because the plaintiff is saddled with an extremely high standard of proof. So, by taking on such a lawsuit in the first place, Dominion Voting Systems took a significant financial risk with little promise of reward and succeeded in badly battering Fox's reputation in the deposition and discovery phases. 

How many other entities other than Congress and public prosecutors have done that?

And a trial would not have caused Trump supporters and conspiracists to finally see the light. Evidence from this case alone underlines the reality that when the Fox audience can't get conspiracy theories and lies, the staple elements of their belief system, in one place, they go somewhere else.

The damages are also not a “rounding error”: they are a significant loss for Fox, and its not the end of their public exposure either, something a settlement usually guarantees. Dominion has barely begun attacking Fox's favorite guests. The company is still suing Trump advisors Sydney Powell, Rudolph Giuliani, and Mike Lindell for $1.3 billion each; and NewsMax and One America Network for $1.6 billion each.

Furthermore, the fun won't stop for Fox: Dominion is handing off the legal baton and crates of damning evidence to Smartmatic. That company has already filed a total of $2.7 billion worth of defamation suits against Fox Corp, Fox hosts Maria Bartiromo and Jeanine Pirro, former host Lou Dobbs, and several of their most mendacious guests.

And if successful, those judgements—along with Dominion’s ongoing litigation—are guaranteed to hurt.

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What I’m reading:

• Jason McBride, Eat Your Mind: The Radical Life and Work of Kathy Acker (Simon & Schuster, 2022): I couldn’t recommend this book more, particularly if you—like me—are ambivalent about Acker’s work. She was a legend in the East Village when I was living there in the 1980s, and then—I have consistently found her books borderline unreadable. McBride’s biography is the perfect mini-course in Acker that might permit me to try again.

Short takes:

• The ongoing struggle over California Senator Dianne Feinstein’s prolonged absence from the Senate has sparked charged of sexism: for example, Strom Thurmond was completely and obviously dotty for years before he died in harness. But Vanity Fair’s Molly Jong-Fast is unmoved. “We should not hold a United States senator to a lower standard than that to which we hold all other Americans,” Jong-Fast insists. She also argues that this isn’t a problam of misogyny, but male privilege. “`They’ should have gone after men too, if the men weren’t able to do their jobs,” she writes. “This is not about ageism or about feminism; this is about holding public servants to the same standards we hold everyone else to.” (April 18, 2023)

• How could the voting system itself help us ease polarization? The Minnesota State Legislature thinks ranked choice voting could be one answer. At Politico, James Traub profiles Jeanne Massey, the Minnesota activist who has spearheaded the campaign to pass a bill that, in some Minnesota towns and cities, has already “forced candidates to reach out beyond their base.” (April 16, 2023)

• If you are a Succession fan, go read this juicy article by Vanity Fair’s Gabriel Sherman. It’s about the family struggle over Rupert Murdoch’s media empire, the patriarch’s demise, and the threat that the Dominion lawsuit poses to the future of…well, everything the Murdochs own and stand for. “There is an irony to Murdoch’s current woes,” Sherman writes about the case that barrels to trial this week. “He monetized outrage and grievance to build a conservative media empire that influenced politics on three continents for the last half-century. Now these same forces are threatening to destroy his legacy, his still-vast media empire, and the family that stands to inherit it.” (April 12, 2023)