Fox News behaved egregiously, but the settlement was good for the law
W”I could stand in the middle of Fifth Avenue and shoot somebody, and wouldn’t lose any voters.” - Donald Trump
Fox News could plop one of its prime time anchors at a desk in the middle of Sixth Avenue, in front of Fox’s headquarters, and the anchor could report that John Wilkes Booth killed Marilyn Monroe on the grassy knoll in Dallas’s Dealey Plaza. And Fox News would not lose its core viewers.
In recent months there has been an avalanche of evidence that Fox News thinks of its audience as akin to campus snowflakes easily triggered into trauma. And that Fox News should be their “safe space” where viewers will encounter nothing, such as news (e.g., there is no evidence for anything Trump said about 2020 voting irregularities), that might make them sad.
Otherwise they might bolt to Newsmax or some other source of solace. Fox News’s robust ratings indicate that its viewers’ appetite for the preposterous exceeds their pride.
Tuesday’s decision by Fox News and Dominion Voting Systems to settle Dominion’s defamation suit was good for both parties. And for the law.
Before Fox News’s agreeing to pay Dominion $787.5 million, the voting machine company had received redundant, well-publicized vindications of its probity: Fox News never ventured onto the thin ice of arguing that it ever had even a smidgen of evidence to support what was said by the Dominion detractors — Trump lawyers and a pillow-hawking acolyte — to whom Fox News gave abundant airtime.
(My Pillow’s Mike Lindell to Tucker Carlson, Jan. 26, 2021: “I have the evidence … I dare Dominion
to sue me because then it will get out faster … they don’t want to talk about it.” Carlson: “No they don’t.”)
By settling, thereby avoiding a trial, Fox News was spared further dissemination of embarrassments. These include internal communications that prove two things:
First, pecuniary motives led Fox News to pander to Trump adorers who, furious that on election night the channel had correctly called Arizona for Joe Biden, were fleeing like lemmings to Newsmax, an unwavering defender of the indefensible. (Carlson to his producer: “We’re playing with fire, for real. With Trump behind it, an alternative like Newsmax could be devastating to us.”)
Second, when not toadying to Trump, some Fox News personnel were saying, in effect, that they wished that he, like the Wicked Witch of the West, would melt away. (Carlson: “I hate him passionately … He could easily destroy us if we play it wrong.”)
Fox News’s anticipated defense in a trial was to be: We were just neutrally reporting, not endorsing, newsworthy accusations of vast election fraud, accusations made by public figures.
So, imagine the faces of the lawyers for Rupert Murdoch, chair of Fox Corp., when during a sworn deposition he said (as reported by the Wall Street Journal, a Murdoch property) that some of Fox News’s on-air personnel “endorsed” charges that the election had been stolen.
Earlier in his career, Murdoch said: “We’re not here to pass ourselves off as intellectuals. We’re here to give the public what they want.” Fox News, defending its practice of telling viewers what they wanted to hear about the 2020 election, could have argued: Journalistic entities do this constantly — e.g., saying particular extreme weather events are caused by climate change. Such conclusions please news consumers by ratifying their beliefs, but are scientifically indefensible. Some of Fox News’s journalistic despisers should be relieved that the trial did not occur.
In the trial, few facts would have been in dispute, but national passions would have been engaged. It would not have been an ideal occasion for rethinking the law of defamation.
It currently holds that defamation occurs when a person makes statements that show “reckless disregard” for the truth (a component of defamation), or “actual malice” (another component) in making statements known by the speaker to be false. What might look like reckless disregard for the truth might merely be indifference to it.
And what might look like malice could be merely the breezy exuberance of entertainers.
These distinctions (like the distinctions between “endorsing,” “amplifying,” “ratifying” and “promoting” falsehoods) are often not obvious.
Fox News could not have comfortably defended its on-air personnel as entertainers, not journalists, and innocent of defamation because they are anti-intellectual sociopaths. But any port in a storm.
Besides, Bishop Joseph Butler (1692-1752) was right: Everything is what it is, and not another thing. Regarding the election fraud claims, Fox News, citing Butler, could have argued that neither cupidity nor cowardice are synonyms for malice.