Seven hundred and eighty-seven million guilty verdicts

On the precipice of going to trial, with a jury seated and ready to hear opening statements, Fox News Corporation settled the defamation case of the century with Dominion Voting Systems last week for a staggering $787.5 million. It is the largest publicly known defamation settlement in U.S. history involving a media company.

The case, formally known as Dominion Voting Systems versus Fox News Network, alleged that Fox knowingly made false claims that Dominion voting machines were tampered with as part of a conspiracy to steal the 2020 U.S. presidential election from Donald Trump. Dominion claimed defamation and sought $1.6 billion in damages, while Fox argued it was reporting opinion regarding what others were saying as protected by the First Amendment and the landmark 1964 U.S. Supreme Court case New York Times Company v. Sullivan.

After a stupendous two-year legal battle that uncovered thousands of emails, tweets, and text messages amongst Fox personalities and leadership that largely destroyed the network’s credibility, Fox caved and offered almost one-half of the damages sought by Dominion rather than go to trial and risk the embarrassment of having Fox executive chairman Rupert Murdoch and his network stars (Tucker Carlson, Lou Dobbs, Sean Hannity, etc.) take the stand. In their statement afterwards, Fox attorneys admitted their client had lied, saying, “We acknowledge the Court’s rulings finding certain claims about Dominion to be false.”

To say that the settlement is astonishing is an understatement. First, $787.5 million is eight times higher than Dominion’s annual revenue in 2021. In other words, it is a ludicrously high number in terms of actual damages that Fox attorneys would never have agreed to were it not for the fact they were likely to lose and desperate to avoid more negative publicity. Second, it is important to note that defamation cases are extremely hard to win because plaintiffs must prove that defendants acted with “actual malice.” That means it is not enough to prove that mistakes were made. The courts have ruled time and again that the press has wide latitude under the First Amendment to make mistakes of fact or interpretation. Defamation requires that plaintiffs prove beyond a reasonable doubt that defendants knew what they were saying was wrong and did it anyway with an intent to cause harm. That requires being able to prove motive, which is almost impossible in most defamation cases. Yet Fox attorneys were so convinced the standard had been met and exceeded that they convinced Murdoch to open his checkbook and send three quarters of a billion dollars to Dominion rather than risk losing more in a trial.

What the evidence showed

The evidence they feared most was produced in the discovery phase of the case, when text messages and emails between Fox news personalities and administrators revealed widespread panic following the 2020 election and a willingness to knowingly lie to viewers to retain high ratings. Ironically, the insanity began when Fox told the truth and called Arizona for Joe Biden on election night in 2020. Winning Arizona (which subsequent recounts showed again and again that Biden did) meant Biden would win the election, and rather than face the truth Fox viewers began switching channels to more strident right-wing networks like Newsmax and the One America News Network. Faced with declining ratings and furious emails and phone calls in the ensuring weeks, Fox on-air personalities and network executives made the conscious decision to promote the Big Lie by putting people like Rudy Guliani and Sidney Powell on the air to promote election fraud conspiracy theories that everyone at Fox knew were baseless. The evidence also demonstrated that Fox employees were saying one thing to their Trump supporting audience and something else to each other. Texts showed that Tucker Carlson “hated” Donald Trump, that he knew Trump lawyer Sidney Powell was “lying,” and that Murdoch thought Trump’s baseless lies about the 2020 being stolen were “crazy stuff.” They proved that people knew Rudy Guliani was lying about the election, and that the overriding concern amongst the Fox crowd was revenue rather than the truth.

Somewhere along the way any credibility or integrity Fox had as a news organization disappeared for good, though not amongst its most loyal followers. Once Fox got back on board with the election denials they returned and have stayed loyal ever since. Fox has said very little to them about settling the Dominion case, or about the role that the network played in abetting a conspiracy against our constitutional government to make more money. And we should not expect them to do so. Whatever hope anyone had that Fox viewers would turn away if they were finally confronted with the truth is likely forlorn. The most dedicated viewers want to be lied to. It makes them feel better. And while that is a sad commentary on where we are as a nation and on the decline in some quarters of professional journalism over the last 50 years it is nonetheless the truth. It is a frightening reality the rest of us must face in every future election.

Reason for hope

Yet there is also reason for hope. Dominion, after all, did win their case. Fox has more than $4 billion in cash reserves and so it can afford to settle, but even Rupert Murdoch cannot write $787 million checks too often. And more cases are coming. Dominion has sued Mike Lindell, Sidney Powell, Rudy Guliani, and others associated with promoting the lie that the 2020 election was stolen, while Smartmatic, which also makes voting machines, has sued Fox News for $2.7 billion. And because Fox admitted that it lied in the Dominion case it will be extremely hard to avoid losing or settling defamation cases brought by Smartmatic or others, which in turn means Murdoch better keep his checkbook handy.

Victories in court over election deniers are unlikely to convince believers in the Big Lie they are wrong, but they might force corporate news providers to be more cautious in their coverage of the news and convince moderate and swing voters to support candidates that promote positive change and sensible government policies rather than celebrating lies, divisiveness, and dysfunction.

Those are reasonable hopes for us to have. But the courts alone cannot save us. Neither can other voters. You and I must take responsibility for this democracy of ours and decide whether we believe in the system and support honesty in journalism or not.

The kind of country our children will live in hinges on what we decide to do.

Lance Janda holds a PhD in History from the University of Oklahoma and has more than 30 years of experience in higher education. He is the author of “Stronger Than Custom: West Point and the Admission of Women”, among other works.