The settlement Tuesday afternoon of Dominion Voting Systems’ defamation lawsuit against Fox News and Fox Corp. put a quick stop to one of the most consequential First Amendment cases in decades. Fox News will have to pay $787.5 million — an economic bonanza for Dominion. But importantly, the media company will not have to publicly apologize. And that means Rupert Murdoch’s team may feel like it dodged a bullet.
Social media was flooded with outrage Tuesday because of the way the company is already spinning the settlement as a reflection of its “continued commitment to the highest journalistic standards.”
It’s not a full victory for Fox — but things certainly could have ended a lot worse.
Those critics should remember Fox News is not out of the woods — at least not yet. But let’s first evaluate Tuesday’s settlement. It is not a full victory for Fox — but things certainly could have ended a lot worse. The projected weekslong trial would most likely have generated a daily flow of unflattering reports about Fox News. That’s a lot of grist for both the social media and cable TV mills.
Indeed, in retrospect, the timing of this settlement makes a lot of sense. By settling now, Rupert Murdoch, Tucker Carlson and other Fox News employees will not have to testify under oath. On the witness stand they would have been confronted with their private texts and sworn deposition testimony.
Judge Eric Davis had also sanctioned Fox News for withholding evidence and questioned the credibility of its lawyers’ representations to the court. He followed that up by appointing an independent special master on Tuesday to investigate whether Fox News engaged in discovery abuses and by ordering Fox News to pay the costs of that inquiry. Fox News could not have been happy with that development.
The complete terms of Fox News’ settlement with Dominion are not public yet. But it seems to leave unresolved critical issues that could have been decided in the jury trial. Specifically, the jury would have had to decide whether Fox News defamed Dominion knowing the statements were false or recklessly disregarding their truth or falsity.
And Fox News’ tepid statement will make precisely nobody happy.
“We acknowledge the Court’s rulings finding certain claims about Dominion to be false,” the release notes. That wording admits nothing. The court already made that finding in its rulings on summary judgment on March 31. Critically, Fox is not admitting that it lied about Dominion, much less that it did so knowingly.
The backlash to this framing has been swift, with critics decrying what feels like a pricey slap on the wrist. But a jury cannot force a company to publicly apologize. A jury can only award money. And Dominion is a private corporation seeking to advance its own economic agenda. The massive payment satisfied Dominion’s goal. Any demand by Dominion for a public apology could have been a deal breaker that would have scuttled a settlement. Meanwhile Fox News lawyers knew that any acknowledgment of wrongdoing in the Dominion case would have huge collateral damage. Because Fox still faces another major lawsuit — this one from Smartmatic, also a voting machine company — which is seeking $2.7 billion in damages for allegedly defamatory claims about the 2020 presidential election. Smartmatic has a lot to build on here. The judge in Dominion’s case ruled that Fox News broadcast multiple false statements of fact. Smartmatic can and should parlay the sworn depositions from the Dominion case and the internal Fox News text messages and emails to prosecute its own case. Fox News clearly has no qualms about settling cases. Earlier this month, Fox News settled a libel lawsuit by Venezuelan businessman Majed Khalil, who alleged that Lou Dobbs, then a Fox host, helped implicate Khalil in rigging the 2020 election results. The settlement amount was not disclosed. Now, Fox News will pay a legitimate fortune to end round one — Dominion’s lawsuit — but still faces round two. This means Tuesday’s settlement may establish a floor, but not a ceiling, for what Fox News will have to pay to close this unseemly chapter of broadcasting fake news about the 2020 election. But without a real public apology or a chance for true, honest accountability, many people will be hoping Smartmatic chooses principles over profits.
Michael Conway
Michael Conway was counsel for the House Judiciary Committee in the impeachment inquiry of President Richard Nixon in 1974. In that role, he assisted in drafting the committee's final report to the House in support of the three articles of impeachment adopted by the committee. Conway is a graduate of Yale Law School, a fellow of the American College of Trial Lawyers and a retired partner of Foley & Lardner LLP in Chicago. 
