As a legal analyst on Fox News, I have largely refrained from writing about the case. Many of us who teach in the areas of tort and constitutional law were uneasy over the impact of a verdict in light of the Supreme Court’s landmark decision in New York Times v. Sullivan in the 1960s. It has little to do with Dominion or Fox. It has a great deal to do with the rights of free speech and the free press.
Dominion brought a $1.6 billion lawsuit against Fox News and parent company Fox Corporation in March 2021 based on interviews and commentary on claims by President Donald Trump and his associates that Dominion’s voting machines were used to rig the 2020 election.
Fox was recently hit by damaging rulings by Delaware Superior Court Judge Eric Davis in clearing the path for the lawsuit.
While all of the details are not known, the settlement will avoid any trial and any precedent over key legal questions including (1) the line between opinion and fact in the media and (2) the application of the “actual malice” standard to these statements.
Some on this blog previously noted that my circumspection in commenting on the case was likely an effort to avoid any appearance of bias or a possible conflict of interest. I not only work for Fox as a legal analyst, but I came up in the discovery, albeit tangentially, in the litigation. One of the emails produced in discovery from Rupert Murdoch showed him favorably raising my analysis while warning hosts not to echo “sore loser” claims. Murdoch was encouraging balanced coverage. The email concerned my analysis that there was no real evidence of voter fraud that would change the outcome and that we would have to wait to see if such evidence was submitted in court filings. On Fox, I criticized the Trump legal team for failing to do so at their long-awaited press conference and instead offerring unsupported conspiracy theories.
The settlement avoids what would have been a lengthy trial and likely years of appeals. In the Nick Sandmann controversy, settlements were reached where media made express false statements of fact. In that case, a videotape clearly refuted what was being reported as an attack by the then high school student against an elderly Native American activist.
This case was a bit different in the inclusion of more vicarious liability for the statements made by high-ranking Trump associates in interviews. (Fox itself recently reached a settlement with an individual who claimed specific false allegations against him in the voting controversy).
The case was likely to address the obligation of media not only to report but to retort or rebut viewpoints. That created concerns even among Fox critics over its impact on journalism. The settlement means that this will not be a case for the law books, but it will obviously be debated for years to come.
These views expressed here are my own and not those of any of my associated media organizations.