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- Fox News detractors want Dominion’s lawsuit against Fox News to move forward for democracy’s sake.
- But Dominion is a private company that wants money and to restore its reputation.
- As revelatory as a trial might be, a settlement could save years of legal headaches for Dominion.
WILMINGTON, Delaware — The trial for Dominion Voting System’s blockbuster lawsuit against Fox was pushed back on Monday amid multiple reports that the two parties are negotiating a settlement.
A settlement isn’t guaranteed. And Delaware Superior Court Judge Eric M. Davis told prospective jurors to return for the completion of jury selection and opening arguments on Tuesday. Still, a possible settlement put multiple commentators on edge.
On Twitter, former Fox News host Gretchen Carlson — who herself received a $20 million settlement and public apology after accusing Roger Ailes, the network’s former CEO and chairman, of sexual harassment — begged Dominion not to settle the case.
“PLEASE Dominion — Do not settle with Fox! You’re about to prove something very big,” she wrote.
Journalism professor and media commentator Jeff Jarvis pleaded with Dominion to ensure a “public trial.” “Democracy needs Fox on trial,” Jarvis said.
MSNBC’s Mehdi Hasan said the courtroom is the only way to “stop the ‘Big Lie'” that the 2020 election was stolen from Trump and handed to now-President Joe Biden.
It’s a common sentiment on Twitter: Fox News has disgraced American democracy by pushing lies that the 2020 election was stolen, Fox’s detractors say. A reckoning in a courtroom, where a judge has no patience for falsehoods, is an important way to bring a reckoning, these people say. A settlement — on the eve of a trial, no less — would let Fox News escape accountability once again, the argument goes.
In the cold logic of a court case, though, Dominion has nothing to do with democracy.
Dominion is a private company founded in Canada and now headquartered in Colorado. It is an item on a balance sheet of a private equity company, Staple Street Capital, which owns a majority of its shares.
The election technology company has filed a civil defamation lawsuit against Fox News and its parent company, Fox Corporation, and asked for $1.6 billion. That money, the lawsuit says, would cover what Dominion says are losses to its business operations as well as security costs for employees who have become targets because of pervasive false conspiracy theories that Dominion rigged the 2020 election.
Because this is a defamation lawsuit, Dominion wants Fox to set the record straight on its broadcasts as well. While the network did air a bizarre, hostless segment where a professor said there was no evidence the election was rigged, Dominion saw that as laughably unsatisfactory. In an interview with Insider in December 2020, several months before the lawsuit was filed, Dominion lawyer Tom Clare said Fox’s retraction and apology should be given the same prominence as its false claims.
“If you accuse somebody falsely on a prime time slot, or in the host’s own voice, or a 10-minute segment, then you need to have equal prominence and equal dignity in the retraction and apology,” Clare said at the time.
That is basically what Dominion wants: Money and a restored reputation. If it can get those things, there’s no need for a trial.
If Dominion wins at trial, it could be years before it gets any money
A trial, to be sure, would likely be enormously satisfying for detractors of the conservative media organization. In court filings and courtroom arguments, Dominion has said it plans to call hosts Tucker Carlson, Sean Hannity, Maria Bartiromo, Bret Baier, executives Rupert and Lachlan Murdoch, Suzanne Scott, Jay Wallace, and other boldfaced names to the witness stand. Court filings have already spilled numerous embarrassing revelations about the inner workings of Fox News and its relationship with Trump. There is nothing Fox detractors would like more than to watch its top brass forced to explain themselves in front of a jury — and the American people.
First Amendment experts largely agree that Dominion’s case is extraordinarily strong for a defamation lawsuit, which is hard to win in the United States because of strong First Amendment protections. Davis, the judge, has also ruled repeatedly in Dominion’s favor and admonished Fox’s lawyers over withheld evidence.
Protesters outside Fox News’s headquarters in New York City.
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But there is always the risk that a jury, at the end of a six-week trial, just might not agree with Dominion’s case. And even if Dominion does win, Fox has signaled a plan to appeal, including up to the Supreme Court, which means the case could be tied up for years before Dominion sees any money.
Legal experts also point out that courtrooms are not perfect vehicles for establishing the entire truth. While they are great at putting new facts on the public record, they are limited by the laws of evidence and the judge’s decisions.
“You’ll never get the full picture,” Jane Kirtley, a professor at the University of Minnesota’s journalism school and former executive director of the Reporters Committee for Freedom of the Press, told Insider before the trial. “If you try to use a libel suit as a means to determine what the truth is, it’s just not going to be very effective.”
Fox has many incentives to settle, experts say
Some experts have been saying for months now that Fox ought to settle and have been puzzled by why the company hasn’t.
“The facts are just plain terrible,” James Goodale, a former lawyer for the New York Times and other news organizations, told Insider. “And when you got really bad facts, you ought to get rid of the thing.”
Fox News, for its part, sees different stakes. It has denied Dominion’s allegations and says the First Amendment is on the line. The company argues that it was fairly reporting on explosive claims made by the sitting president of the United States.
If the case goes to trial, Fox will have to convince a jury it didn’t act with “actual malice” — meaning it didn’t intentionally lie or intentionally disregard the truth — the bar for victory in a defamation suit involving public figures.
In court filings, Fox News has sought to reduce the potential damages Dominion can claim in the lawsuit, arguably giving an indication of how much Fox News would be willing to pay to settle. Dominion is asking for $1.6 billion in damages, but Fox says it obtained records in the discovery process that show Dominion is worth closer to $100 million.
A view of the Fox logo outside the News Corp Building in Manhattan.
Roy Rochlin/Getty Images
Other companies run by the media baron Rupert Murdoch, who owns Fox News, have a track record of settling major lawsuits, including claims for sexual harassment and hacking private voicemails. A Washington Post analysis found that over the past 13 years Murdoch’s companies paid nearly $750 million in settlement funds.
But just because Fox may settle Dominion’s lawsuit doesn’t mean it’s free of legal risk. It has another major lawsuit pending from Smartmatic, also an election technology company that claims Fox News and Fox Corporation defamed it when they invited Trump lawyers Sidney Powell and Rudy Giuliani to share election conspiracy theories.
Smartmatic has asked for $2.2 billion in damages for its lawsuit, which also includes Giuliani as a defendant. (It filed a separate lawsuit against Powell, in Washington, DC, federal court, for jurisdictional reasons.)
Fox News’ attorneys are almost certain to be weighing how much a payout to Dominion would affect a potential payout to Smartmatic, as well as the prospect that it could become the target of future defamation lawsuits if it’s seen as caving.
There are also risks that Fox shareholders will sue the company for settling. One lawsuit, alleging the company violated its fiduciary duties by being named in Dominion’s suit in the first place, has already been filed.
Representatives for Fox and Dominion have both declined to comment on potential settlement negotiations.