The Media Today

The Dominion-Fox case has clear lessons—whether or not it settles 

April 17, 2023
The Fox News newsroom. Courtesy photo.

Arguably the most consequential media scandal in modern American history.” “The First Amendment fight of the century.” “The libel law equivalent of the Super Bowl.” These are just three representative descriptions—amid innumerable “stunning” “bombshells” (some “extremely” so)—that have featured in coverage of Dominion Voting Systems’ defamation lawsuit against Fox News in recent weeks, crescendoing in recent days as the start of the trial in the case, scheduled for today, has gotten closer. The coverage of the case—which revolves around bogus claims, on the part of certain Fox hosts and guests, that Dominion conspired to rig the 2020 election against Donald Trump—has also given rise to a series of overlapping debates, from the granular to the lofty. Is Dominion’s case strong or is it likely to struggle to succeed, or is it both? Would a finding against Fox have broader consequences for defamation law? Would cameras be allowed in the courtroom—no, in the end—and would their absence be bad for democracy?

In the end, if cameras had been permitted in the courtroom they wouldn’t have captured much—well, not today at any rate. Late last night, the judge in the case said that he was postponing the start of the trial til Tuesday, unleashing a flood of speculation that Fox was seeking a last-minute settlement, and refreshing yet another debate that has driven much coverage of the case: Would Dominion settle, and if so, should they? In recent weeks, some media-watchers and legal experts have maintained that a settlement is the likeliest outcome in the case, but others have argued that it wouldn’t be in Dominion’s interests to accept one at this point—particularly after a disastrous recent spell of pre-trial action for Fox in which the judge ruled that it aired false statements about Dominion, rebuked the network for the possible withholding of information, and opened the door to testimony from Rupert Murdoch, who owns Fox. “Preventing the Murdochs from taking the stand would likely be worth an inflated settlement,” Jeff Kosseff, a legal expert, told Brian Stelter, who is covering the trial for Vanity Fair, but there is “no advantage for Dominion to settle now.”

Like almost every other development in the case, the postponement of the trial was instantly cast in high-stakes terms by members of the media (whose curtain-raiser stories now needed a rewrite) and observers who want to see Fox dragged into court, or at least think that outcome important. “PLEASE Dominion—Do not settle with Fox!” tweeted Gretchen Carlson, a former Fox anchor who sued its late head, Roger Ailes, for sexual harassment and received a twenty-million-dollar settlement. “You’re about to prove something very big.” 

For now, the actual significance of the postponement is hard to gauge; when the books and prestige miniseries about this case are written, it could be the denouement or a twenty-four-hour blip. Still, whether Fox settles or the trial begins (only slightly) behind schedule, it’s worth interrogating the argument that it’s important for the trial to proceed—because it illuminates many of the other arguments at issue in the case. The potential for a settlement seems to have invited the question: what would be lost if the trial is averted? Personally, I’d turn the question on its head and ask: what have we learned already? And what does it all mean? 

A large part of the debate here is about the legal stakes of the case. Some observers have argued that a trial and finding in Dominion’s favor could undermine the protections on which all journalists rely—not least Fox itself, which has dressed its defense in the musty robes of First Amendment jurisprudence, but also some experts and journalists who aren’t in the network’s corner. Many others see something like the opposite as being true: a trial, they say, would test whether US defamation law is adequate to hold accountable the purveyors of malicious lies, which are not in any way the currency of credible journalism. Whatever the outcome, a trial could be seen as a prominent reminder to right-wingers of the costs to their own media ecosystem of weakening libel protections, which some right-wing politicians want to do.

I am not among those who worry that this case might weaken journalists’ First Amendment protections. The current bar that public figures must clear to prove defamation, while high, does not, and never has, protected reckless lies of the type at issue in the Dominion case. What it judges, essentially, is intent; it’s theoretically possible that this case could be decided on specific grounds that seem shaky, but for now that’s hypothetical—and many legal experts agree, based on Dominion’s own court filings, that the company seems to have an unusually strong case. Still, I also don’t think that the case needs to go to trial to have a clarifying effect. The judge already ruled that Fox aired false claims—a flashing red warning sign to those pushing for a defamation standard rooted only in falsity, or something to that effect. Nor would a last-ditch settlement let Fox off the hook. I agree with the media-watcher Dick Tofel, who wrote recently that any major settlement by Fox “should be seen as an admission of guilt by any reasonable observer.”

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A related question here is one of disclosure. A trial—as Gabriel Sherman, a longtime Fox-watcher who recently published a major profile of Murdoch for Vanity Fair, told Stelter recently—would fulfill any self-respecting media reporter’s dream of having Murdoch and other major players at Fox, on air and off, answer probing questions under oath. True enough; a trial would likely throw up fascinating revelations about behind-the-scenes decision-making at Fox. But the runup to the trial has hardly been short on those; Dominion’s filings have unearthed compelling evidence that Murdoch and many of his minions knew that Trump’s election lies were lies, but broadcast them anyway, not least for fear that pro-Trump viewers might flee to fringey right-wing competitors. (Fox has accused Dominion of taking this evidence out of context.) It’s clear, by now, what Fox did—indeed, I’d argue that it was clear back in 2020, when, as I wrote at the time, network personalities fell far short of the only proper standard for Trump’s conspiracies: zero tolerance. Evidence that Murdoch et al knew these were crazy is important. But it’s also kinda obvious. (Tucker Carlson actually knew all along that the sky wasn’t green!

Of course, the more facts enter the public domain, the better. But we know enough already to state some clear conclusions from this case, whatever happens next. (Indeed, it strikes me that a trial, in addition to throwing up new evidence, could also muddy these conclusions by getting deep into the legal weeds around a handful of specific actionable statements.) Media-watchers have often debated how much influence Fox has over its audience—whether the likes of Tucker Carlson have radicalized swathes of red America, or whether the network is catering to a market niche. The answer, I’ve always thought, is both: Fox programming helps inflame public opinion, but not in any sort of vacuum. The disclosures in the Dominion case have offered valuable evidence for this proposition. Various Murdoch-watchers have argued that he was a victim of his own success: selling viewers on outrage, then having to cater to them or risk them drifting away.

And yet what has struck me most about all the disclosures is how pathetic a picture they paint. Murdoch appears to have feared not only his own viewers, but competition from rival networks that even I, a detached observer, thought at the time simply did not have the juice to mount a serious long-term challenge to Fox’s ratings supremacy. Perhaps, as the Murdoch-watchers surmised, he, and Fox, were trapped by their own power. But it’s also possible, I think, that they underestimated their power: not to convince diehard Trump fans that the election was fair, but at least to deflect, distract, and spin their way out of the news cycle until things quieted down. As I wrote in this newsletter last week, Murdoch’s combined political and market power is the key reason that he has avoided fatal blows following past scandals, and will likely protect him from the worst again this time. The Dominion disclosures appear to be a case study in the abuse of that power. But they also paint a picture of an emperor unsure, even now, of what to do with it.

In his recent Murdoch profile, Sherman wrote about Succession—the exquisite HBO satire of a Murdochian media dynasty—and how it has apparently wormed into Murdoch’s head even as he has insisted that he doesn’t watch it; per Sherman, when Murdoch divorced his most recent wife, Jerry Hall, one of the terms was that she couldn’t suggest plot ideas to the show’s writers. As the scheduling gods would have it, the final season of Succession is running concurrently to the Dominion trial (and has generated about as much media chatter). More than once, I’ve involuntarily imagined how the trial might play out as a Succession plot point.

In the past, some critics have taken Succession to task for the supposed repetitiveness of its plots—a whir of family squabbling over various business deals and legal threats. But the repetitiveness has always struck me as the heart of the satire: the characters run furiously around corporate hamster wheels, treating every development as life-or-death even as the details can seem interchangeable, all the while finding no satisfaction but facing no fatal threats to their privilege either. Something like this logic applies, as I see it, to the Dominion case. In some ways, it’s a pessimistic takeaway. But it is an enlightening takeaway. Settlement or not.

Some news from the home front:
In Friday’s edition of this newsletter, Kyle Pope, CJR’s editor and publisher, previewed a new issue of CJR, called “Breaking Points,” focused on the global rise of authoritarianism, and featuring stories from Myanmar, Pakistan, Ukraine, and Brazil, among many other countries. “Fundamentally, thanks to a political culture that rewards undermining news media, too many people in the United States have decoupled a free press from the functioning of a democratic society,” Pope wrote. “We know, too, that these problems are not self-contained. Since the early years of Trump’s political career, his anti-press rhetoric has crossed borders, adopted by foreign leaders.” The new issue is out in full this morning. You can find all the stories on this landing page.

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Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, Foreign Policy, and The Nation, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.