Why the settlement is good for journalism
This case had the potential for making its way up to a very different Supreme Court — a court where at least two members have indicated they were more than ready to revisit New York Times v. Sullivan.
As delicious as it would have been to watch Tucker Carlson under cross examination huma-da-humming his way around the boatload of lies told and retold about the 2020 election, revenge in this case is indeed a dish better served cold.
Well, the $787.5 million settlement Fox News has agreed to pay out to settle the defamation case brought by Dominion Voting Systems isn’t too shabby either.
Yes, it would have been days or even weeks (the court estimated the trial might have taken about six weeks) of the cable news station’s hypocrisy on display. The testimony wouldn’t have brought much in the way of surprises really. The good stuff — about the reality of privately shared e-mails questioning the truth and sometimes the very sanity of Donald Trump and his merry band of wacky election deniers — has been out there for months thanks to the release of dozens of depositions given by Fox News personalities and its founder Rupert Murdoch.
That has given those who cheered the simple truth of Trump’s Election Day loss ample time to relish the exposure of the on-air lies released by the “fair and balanced” network. As for Trump’s true believers, well, they just continue to tune in night after night anyway.
Besides, there would be no video replay, no livestreamed verdict of the trial. Delaware courts are fairly restrictive on that issue and the most Judge Eric Davis would allow was a live audio feed — a poor substitute. That Fox News lawyers argued against a request by a group of media outlets that wanted to be able to record that audio feed and use excerpts on the air is simply Exhibit 432 on the hypocrisy list.
So was the Fox statement issued on the settlement, which in one sentence noted,
“We acknowledge the court’s rulings finding certain claims about Dominion to be false.”
And in the next added, “This settlement reflects Fox’s continued commitment to the highest journalistic standards. We are hopeful that our decision to resolve this dispute with Dominion amicably, instead of the acrimony of a divisive trial, allows the country to move forward from these issues.”
Because, of course, the Fox team — Carlson, Sean Hannity, Maria Bartiromo, Jeanine Pirro — must be so very eager to “allow the country to move forward.”
Davis had, of course, already ruled that statements Fox and its minions had aired about Dominion were false. The media outlet’s lawyers were already precluded from arguing that its broadcasts of false information were still permitted because they raised allegations that were “newsworthy.”
So there wasn’t a lot of legal wiggle room left for the network as it attempted to push back on the issue of “actual malice” — the legal standard that has existed for libel since New York Times v. Sullivan, decided by the US Supreme Court in 1964. In that case the high court unanimously ruled that in order to prove libel a public official must also prove what was said or written was done “with knowledge that it was false or with reckless disregard for the truth.” It was a high bar that has long protected the media from frivolous lawsuits.
And that explains why some of us in the media aren’t weeping salty tears at being spared the drama of Murdoch and Hannity and MyPillow guy Mike Lindell taking the stand (really for those who miss Mike, just catch his commercials). Because this case had the potential for making its way up to a very different Supreme Court — a court where at least two members have indicated they were more than ready to revisit New York Times v. Sullivan.
“The proliferation of falsehoods is, and always has been, a serious matter,” Justice Clarence Thomas wrote in a 2021 dissent in a libel decision. “Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires.”
Justice Neil Gorsuch writing separately also noted that much had changed since Sullivan.
“What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets,” he wrote, “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”
So would I want to give these two — and some of their Trump-appointed colleagues — another chance to overturn one of the few protections left to the media? Not a chance — even if it means depriving Tucker Carlson of the opportunity for the performance of a lifetime.