The Media Today

What the Fox settlement means, and what’s next

April 20, 2023

On Tuesday, as Dominion Voting Systems’ defamation trial against Fox News kicked off in Delaware, Jon Allsop, the regular writer of this newsletter, and Bill Grueskin, a professor at Columbia Journalism School, set out to record our real-time thoughts on the proceedings as they unfolded. No sooner had we started than the case settled, with Fox agreeing to pay Dominion 787.5 million dollars. (The network was not required to publicly apologize.) So, we talked about the settlement instead—what it means, and what might come next, for the parties and for media and politics generally. Our musings have been edited for length and clarity.

JA: So after all that, we have a settlement. What’s your initial reaction to the news?

BG: I regret to remind our friends in the journalism and good-government world that a private-equity firm might not have the same abiding interest in airing the Murdochs’ dirty laundry as those of us who followed this case closely for months. In its pretrial filings, Dominion’s attorneys brilliantly aired just enough of that laundry to further sully Fox’s reputation, expose the network’s hypocrisy, soften up the defense attorneys, and in the end, extract a huge settlement. Those attorneys served their client, and that’s what they’re obligated to do. The rest of us are disappointed, but we should not be surprised.

I dunno, I guess I’m less disappointed than some. Don’t get me wrong, as I wrote on Monday, just from an informational perspective a trial would have been fascinating, and all journalists want more information. But we learned so much just to this point. And I think there’s a deeper level here, at least implicitly, of liberals, in particular, wanting to see Fox in court as some sort of catharsis, and feeling they’ve been denied that. I get that. But I also think it’s rooted in some magical thinking about what the trial would likely have wrought. I don’t really understand this argument that it would finally have exposed Fox viewers to the lies they were told—the pre-trial shenanigans were already a huge story across the mainstream media and yet seemingly didn’t cut through with the people who needed to hear it the most. Why would the trial have been so different? If anything, the trial would have been more specific and in the weeds than the pre-trial conversation; at worst, those specifics could even have muddied the clear broader truths—about misinformation, the Big Lie, and other really difficult problems with our information economy—that got exposed so devastatingly in all the pre-trial disclosures. And even if those bigger truths shone through at trial, it was never going to be a cure-all for the underlying problems themselves. It was never going to lead to some neat Sorkinian climax where Fox was shamed/bankrupted out of business, or into meaningfully changing its ways. I feel somewhat the same way about the disappointment in the lack of an apology in the settlement. It just feels a bit pat to me. What would an apology fix? 

From an accountability point of view, I don’t see Fox as having gotten away with this to the level that some have suggested. They were dragged through reputational hell and have agreed to pay a staggering amount of money to make this go away at the moment of maximum humiliation for them. The narrative of this case will always now be about the damning pre-trial disclosures, the judge ruling Fox’s statements about Dominion legally false, and the massive payout at the end of it. Could a trial have made any/all of this worse for them? Maybe! But that’s not at all a given for me. But what do you think?

I think a trial wouldn’t have necessarily hurt its standing with core viewers, but it could have been damaging to Fox’s reputation with its remaining, non-pillow advertisers, as well as a cable provider or two (the company’s primary source of income). And there were a lot of risks for Fox in a trial. I don’t think we can overestimate how badly Lou Dobbs might have cratered on the stand. His November 2020 conduct was indefensible, and some of his on-air rants were borderline gibberish. I don’t think we can overestimate how much some lower-level employees, who’ve endured the opprobrium and taint of working for Fox, would have happily thrown their bosses under the bus.

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Regarding Rupert Murdoch, think of it this way. Do you sometimes go into a Starbucks intending to get a small, cheap, black coffee and walk out with a pricey, grande caramel frappuccino because Goddammit, you just want to treat yourself to something nice today? Well, Rupert is ninety-two years old. He’s sitting on a pile of cash. He’ll never spend it all. For him, spending a fraction of that to avoid the appearance as a duplicitous or doddering executive—something a good plaintiff’s lawyer could have managed to do—must be worth more than you’d spend on that frappuccino (even adjusting for the Allsop/Murdoch exchange rate).

There is one other Logan Roy-ish theory. In the fall of 2020, Fox executives were freaking out over One America News Network and Newsmax, where some of its viewers were heading. Those networks are also in Dominion’s and Smartmatic’s crosshairs. What if a side benefit of this ordeal is that Fox indirectly bankrupts its competitors by ramping up the price they have to pay, leaving itself an open playing field? 

I actually don’t drink coffee, so I have no idea what you’re talking about there. But I take your point (though I’m not sure even Murdoch at ninety-two has that casual a relationship to losing money). Your latter point is interesting. Personally, I’m very dubious that that would have played into the settlement calculus here—not least because those competitors are less relevant these days. But it’ll be interesting, independently of Fox, to watch what happens in the suits against those other networks. I actually remember saying to a colleague at the time that some of their coverage seemed awfully risky for networks that don’t have Fox’s financial padding, all for a ratings sugar high that never, to me, seemed durable. But those cases will have their own particulars, so we’ll see.

On that note, another reason that Fox didn’t dodge a bullet here is that this isn’t the last case it’s facing—the Smartmatic defamation suit against it is progressing. Again, that’ll have its own legal and atmospheric specifics. But it’s hard not to see its Dominion payout as a precedent, of sorts, for that case. This ain’t over yet…

And Smartmatic has a very compelling case. By all accounts, the company had a limited role in the 2020 election. But Fox let Sidney Powell, Rudy Giuliani, et al spout the wackiest conspiracy theories about the company. We don’t have an estimate of the financial toll on Smartmatic, but the company has a lot of business overseas, and you can imagine its sales reps dealing with plenty of raised eyebrows, or worse, when trying to seal deals while so many lies were being promulgated on America’s top-rated cable-news network. Maybe that’s why Smartmatic is asking for 2.7 billion dollars, rather than Dominion’s 1.6 billion dollars.

Most of all, I’m intrigued by what this means for 2024. Fox is going to face a tough set of decisions. Let’s assume Trump is nominated by the GOP. Let’s assume Trump campaigns by spouting countless falsehoods about election security, mail-in-ballots, and Hugo Chávez’s ghost. How will Fox deal with that? They can’t ignore Trump (any more than MSNBC can). Will they subject these claims to any kind of journalistic scrutiny? Will they refuse to book guests with wild theories? Dominion’s discovery showed how Fox managers kept trying to “thread the needle”—their words, not mine—between not caving to the conspiracists and not pissing off their viewers. And guess what. It’s impossible. Some needles can’t be threaded.

If I’m Rupert or Lachlan Murdoch, I’m praying for a DeSantis comeback, or a Tim Scott deus ex machina miracle.

I mean, one of the great ironies of all this, for me, is that prominent voices at Fox clearly loathe Trump but have, now literally, absorbed huge costs defending him. But I do think the question of 2024 speaks to some of the limitations of pinning our hopes on defamation law as a way to cleanse our information ecosystem of election denialism. I would imagine Fox and others will think twice before airing specific defamatory claims against a specific person or company. At least, I’d hope so. But there are lots of easy ways to spread, indulge, or platform conspiracy theories in a more general sense, that would never be a matter for the courts because they aren’t harming the reputation of any one person. This case is a disincentive if/when Trump starts railing against a specific company or poll worker in the future, but not if he’s just engaged in generalized ranting. And that’s basically his factory setting. 

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

Jon Allsop and Bill Grueskin are the authors of this article. Jon Allsop writes CJR’s newsletter The Media Today. Bill Grueskin is on the faculty at Columbia Journalism School.