Fox News’ lies about voting machines rigging the 2020 Presidential election really put the screws to Dominion Voting Systems, thus resulting in colossal financial harm. I don’t know that for a fact, but Fox News does. Through pretrial discovery Fox reckoned they hurt Dominion to the tune of $787.5 million dollars. Since Fox is not a charity, we can all assume that Fox needed to pony up that amount to compensate Dominion for the losses Fox caused. That’s what civil litigation is all about – compensation.
So why should Dominion decline to settle until it gets a retraction and an apology from Fox? I know that millions of Americans and some media outlets and opinion columnists wanted to see Rupert Murdoch, Sean Hannity and now-departed Tucker Carlson, vanquished and humiliated, either being crucified on cross examination or offering an apology at a televised press conference. Many have suggested that public beatdowns on the guilty parties are a necessary coda to the miserable stop the steal saga. I disagree.
Since when does the general public get to throw its two cents worth into a lawsuit settlement negotiation between two non-government corporations? True, democracy took a beating at the hands of Fox and others but the public had no cause of action and no remedy in a court of law. The only remedy the public has against Fox is changing the channel and boycotting its advertisers – actually not a bad idea. Dominion, however, did have a cause of action against Fox: defamation, real harm, and a lawful remedy. Forgive me for sounding like an apologist for big business, but Dominion had no obligation to satisfy the public’s thirst for public humiliation of Fox celebrities. Dominion decided, as was its exclusive right, to take the money and leave any notions about an apology on the conference table.
What has not been readily spoken about in the media concerning civil litigation is the great advantage to plaintiffs of having their cases settled. Normally, with settlement comes immediate payment. With trials, verdicts and judgments come appeals, the possible problems encountered while trying to collect on the judgment, and the real prospect of only being able to collect a fraction of the judgment amount. Take, for example, the nearly billion-dollar verdict the Sandy Hook massacre victims won against the despicable Alex Jones. Does anyone believe Jones immediately sat down after the verdict and wrote out a check to the plaintiffs in full satisfaction of the verdict? No, he’s doing everything he can to avoid paying the judgment, including, to be sure, hiding assets. Regrettably for the Sandy Hook plaintiffs, collection efforts will be long, costly, and frustrating and they may never collect every penny awarded to them. Dominion will get every penny. In fact, by now, Fox’s check may have already cleared the bank.
And while we’re at it, what’s so great about a public apology from Fox? Does anyone believe Rupert Murdoch, Sean Hannity and Laura Ingraham (substituting for Tucker Carlson) are going to stand before the cameras, broken and contrite, offering a heartfelt apology. C’mon. At best Dominion could only get a Fox spokesperson to read or issue a written statement, carefully crafted by its lawyers, which will attempt to sound more like an exculpation than an apology. Does anyone truly believe Fox will give an apology which would be as satisfying as 18-year-old whiskey?
A ginned-up Fox apology would be as insincere and half-hearted as would Trump apologizing for January 6th. Besides, after the dust settles, Fox would probably start a walk-back campaign, claiming some sort of nonsense – perhaps even cooking up a conspiracy theory – to get the base riled up once again and put election stealing back into the public square. This time around, though, Fox would not pollute the airways by publishing its own poisonous slander. Instead, they would channel the garbage exclusively through the mouths of their guests, and the hosts would respond with backdoor disclaimers such as, “Well if that’s true, that’s really bad (wink, wink).” The false content still gets out, except this time Fox won’t be so stupid as to make the same mistake twice – not after that $787.5 million-dollar gut punch.
Besides, if Dominion insisted on an apology, and if Fox was willing to consider it, surely Fox would want something in return, specifically a reduction of the settlement amount. If Fox is willing to be humble, which is quite a stretch, you can be sure there’s an economic motive behind it. Hypothetically, suppose Dominion offers to settle for $787.5 million dollars, and Fox counteroffers with $737.5 million dollars and a 50-word apology. If Fox accepts the counteroffer, that’s tantamount to Dominion paying Fox one million dollars per word for an apology. Why should they do that?
Anyway, I’m inclined to believe that, more likely than not, Fox would refuse to apologize, even if Dominion offered some financial incentive. Apologizing for lying seems antithetical to their business philosophy. It has a hungry base to feed with grievances and a market share to protect. Caving in and handing out apologies might tarnish that image.
It has a hungry base to feed with grievances and a market share to protect. Caving in and handing out apologies might tarnish that image.
They have enough cash and insurance to pay out huge settlements and judgments. Neither Dominion nor other plaintiffs can bankrupt Fox News, but, if they disappoint their grievance-seeking viewers by appearing weak and feckless, they may lose viewers, then advertisers, then cable providers, then profits.
Moreover, the public’s other claim, the right to know what happened, need not require a trial. The information is already out there in the form of depositions, copies of emails, tweets, and other documents, all of which are in the public domain. If the demand for this information is so great or the information is so vital to national interests, then some enterprising author, documentary filmmaker, or podcast producer could take all the discovery and blend them into a narrative far more interesting than brief, daily news accounts of a trial which cannot be viewed via wall-to-wall live television coverage, a la O.J. Simpson. I’d much prefer to watch a Ken Burns-style documentary produced from the already available discovery than three-minute daily news reports along with an artist’s illustration. The former would be far more interesting, informative and dramatic.
Another voting machine company, Smartmatic, in a separate lawsuit, vows to fight this case through trial and get a public apology. That’s good PR for Smartmatic, but there’s a problem – those are two contradictory goals. If the case goes to trial, there will be no public apology (unless Fox volunteers one – fat chance of that) because neither the judge nor jury have the authority to order one. If Smartmatic wants a public apology, it will have to forgo a jury verdict and settle with Fox.
If Fox agrees to pay Smartmatic a satisfactory settlement amount without an apology or retraction, here’s my advice: take the money and run!
Civil litigation between two non-government entities is about harm done by one to the other. Accountability and vindication can only be gained by the wronged party receiving monetary compensation from the culpable party. Isn’t it enough that Fox gave 787.5 million tacit admissions of screwing up?
Here endeth the lesson.
Hooper, S, Dissenting from your dissent:
The Faux News settlement with Dominion proves several things to me, none of which have anything to do with holding anyone accountable.
First, despite all the hand-wringing to the contrary, this case was never about Faux News’s outrageous lies about the 2020 election, damage to Dominion, threats to its employees, damage to its reputation or such lofty things as “preserving democracy” through “accountability.” It was about money. And loathe as I am to admit this, Rupert Murdoch was absolutely right when he said, under oath, that “this is not about red or blue, but green.”
Second, the Sixty Minutes interview that Anderson Cooper conducted with Dominion CEO John Poulos proves that despite the vivid descriptions of threats of physical harm to him and his employees, he was not really interested in vindicating his company’s reputation after all, for instead of requiring Faux News to supply an admission, confession, retraction and apology, he and his private equity partners took the money.
Third, Faux News Corp. made $4 billion last year on revenues of $14 billion, so $787 million represents ~20% of their annual profit, or the amount of money they made by about March 10. It’s chump change to Murdoch. And it took Faux all of five minutes to start their disinformation campaign about the reason they forked over the money.
Fourth, Dominion didn’t tell us that it’s not really a Mom and Pop outfit started in Toronto with HQ there and in Denver, Colorado. It’s a private company bought out by a private equity firm named Staple Street Capital, which owns 76% of the company. Poulos retains a 12% interest with the balance owned by another private equity outfit. The company is worth about $85 million, or 1/10th of what Faux paid them.
Fifth, the one thing Rupert knew is that Dominion would always take the money because, ultimately, they’re about the green too. He was just lazy about reading depositions and non-redacted memoranda in support of the most kick-ass motion for summary judgment I’ve ever read. Dominion had them dead to rights, but it was not a money judgment Rupert was really concerned about. It was having lawyers that were packing serious gear expose all of them for not just being liars and mercenaries, but that his viewers would find out just how much he and the rest of Faux held them in contempt. It’s why Tucker’s in an unemployment line now and there was no trial.
If corporations are people (and I’ll believe that when Texas executes one of them), then every one of these corporate people are sociopaths who give not a tinker’s dam about accountability, only accounting.
Oh, and on that score, because Faux paid the money as a settlement, Dominion will have to sign a release that allows Faux to deny liability, and Dominion gets to call it compensation (not income) on which it will pay no taxes, and Faux gets to write it all off, including the amount covered by insurance, which they are never required to disclose, except perhaps in a shareholders suit, which they will settle on the same corrupt terms.
Very eloquent dissent, Steve. Can’t argue with it. I think I should have asked you to co-write the piece with me. It would have provided more insight and clarity. Thanks for tuning in and teeing off.
Thanks, Jim. My comment to your well-written piece did not show up as even posted on the platform for quite a while, so long that I wondered if it had even been processed, a fact I was disabused of by your response. Perhaps I’m doing something wrong, or else this is not a very efficient way to communicate.
I’m reminded by all this that the only case I ever lost in federal court was a defamation case where my client was the sheriff, and we were beaten buy an excellent lawyer from Tampa on the very same kind of very rare (as in this case) cross-motions for summary judgment. No appeal was taken (a business decision by the adjuster) as the damages were de minimus in the broad scheme of things, especially when measured against the fees that would’ve necessarily been incurred.
The Smartmatic case intrigues me for the same reason the Dominion case did; the stakes for the health of our republic are equally high. Because both Dominion and Smartmatic are private companies, measuring the stakes is a difficult proposition, for one cannot look to their stock prices for clues.
Smartmatic is multinational corporation may be at least two or three times as big as the North American based Dominion Voting Systems. They should have an easier time proving damages, but they will not be able to stroll into court as a lily-white, clean-hands kind of corporation like Dominion. Should be interesting, and I won’t mind if they decide to finally hold Faux News to account. I just won’t bet on it.