Yesterday's verdict in the Dominion defamation suit against Fox News is a complicated "win", at best. The erosion of US democracy through fake news deserves better reckoning.
Last year, I asked a rhetorical question in the wake of the nearly one billion dollar verdict in the Alex Jones fake news case, which involved relentlessly broadcast lies stoking conspiracy theories around the Sandy Hook massacre. Yesterday, as everyone reported the settlement with Fox News and parent company Fox Corp, of $787.5 million to Dominion Voting Systems for false reports around the 2020 presidential election, I found myself revisiting the ask:
What remains to be addressed is whether a single verdict … will ever be sufficient enough to heal a system of disinformation as vast and entrenched as the one currently gripping the US.
So long as private enterprises are given legal license to game a system that upholds an idealistic approach to individual free speech, can we ever hope for anything more than the occasional awarding of damages well after the most ruinous of facts?
This latest verdict was for acts of defamation that yielded, not the terrorizing of grieving parents of murdered schoolchildren, but rather the contestation of a whole presidential election’s validity: a conspiracy theory that within months led to an attempt at full-on insurrection on January 6, 2021 at the US Capitol.
However, legally speaking, this wasn’t really the part under dispute. Dominion’s reputation as a company had been undermined by Fox claims that it switched votes entered on its election machines, in favor of Democratic candidates. Dominion had sought legal recourse to restore its good name in the courts, and in the court of public opinion.
In the immediate aftermath of the Dominion settlement, the usual media spin has now emerged to decide who “won” with this outcome.
Some consider the settlement, down from Dominion’s original ask of $1.6 billion, as representing “vindication and accountability” (as per Dominion lawyer Justin Nelson). Others expressed hopes that this sum, along with damaging behind-the-scenes materials released in the lead-up to trial, marks a nail in the coffin for Fox News, an organization that for decades has been holding at bay credible claims of fraudulent reporting.
But signs of a significant turning point are mixed. Fox issued no apology, conceding only that “the court’s rulings finding certain claims about Dominion to be false”, and Dominion CEO John Poulos offered no comment to a reporter’s question about whether there would be more consequences outside the settlement, which amounts to one quarter of Fox News‘ gross take from 2022.
READ: Rick Snedeker’s “Fox News’ and Trump’s pants are (still) on fire”
There are more lawsuits pending in relation to fraudulent election claims, including two filed in March by Fox News producer Abby Grossberg, who was fired after filing complaints around alleged pressure tactics to compel misleading deposition from her in the Dominion case. Fox Corp’s chief executive, Lachlan Murdoch, also launched proceedings last June against Crikey, an Australian independent news site, for calling the Murdoch family an “unindicted co-conspirator” in the January 6 attack. That case stands to be undermined by what the Dominion defamation suit already uncovered, and by Rupert Murdoch’s recent testimony admitting to Fox News hosts having “endorsed” an electoral conspiracy narrative.
Of these other cases, the most important involves Smartmatic, another election tech company that has a legal team with a lot more literary flourish. When its lawyers filed their defamation suit against Fox in February 2021, the complaint began:
The Earth is round. Two plus two equals four. Joe Biden and Kamala Harris won the 2020 election for president and vice president of the United States. The election was not stolen, rigged, or fixed. These are facts. They are demonstrable and irrefutable.
[The d]efendants have always known these facts. They knew Joe Biden and Kamala Harris won the 2020 U.S. election. They knew the election was not stolen. They knew the election was not rigged or fixed. They knew these truths just as they knew the Earth is round and two plus two equals four.Smartmatic Complaint Against Fox Corporation (pg 10)
This complaint targets Fox News directly, along with Fox Business host Maria Bartiromo, Rudy Giuliani (former lawyer to past president Donald Trump), and former Fox Business anchor Lou Dobbs, whose show was canceled the day after this suit was filed.
In the gamification of democratic protections that often emerges around such trials, we’re already seeing media promote the Smartmatic case as the next great challenger, as if this were a series of sporting events. Their $2.7 billion dollar ask is based on extreme claims made on Fox about their company and its operations, including the idea that the company was founded in Venezuela for the use of dictators.
But pay attention to those opening lines in Smartmatic’s complaint: the company’s legal team has set a much higher bar for itself, in not only having to prove defamation but also that Fox News and its correspondents defamed the company with what the document goes on to identify as “actual malice”. Certainly, from the behind-the-scenes materials already released, which show that many members of Fox staff were opposed to news directions taken by the corporation and cognizant of the lies being advanced, this may be a plausible win. It will not, however, be an easy one. Not in this political climate, at least.
READ: Jonathan MS Pearce’s “Identity politics and the real enemy of the state?“
There are many ways to go about restoring accountability when the pillars of democracy are shaken. International oversight during future elections is one of them. Electoral form for greater direct democracy is another. And another still is the use of a full public tribunal or hearing, in which everyday citizens are given opportunity to review the evidence alongside sitting representatives and accused parties. The January 6 hearings from the House Select Committee, which released its full report on December 22, is one such outing.
But defamation suits do not quite rise to this level, as the Dominion settlement abundantly illustrated, and media needs to take care not to conflate the two. Although this latest case had the opportunity to reveal a far greater range of evidence as to the extent of potential Fox News misconduct, the lawsuit was ultimately about acquiring for the legal team’s primary client, Dominion, the best possible outcome as served its needs and wishes.
The US general public, a demographic spanning those who never supported Fox News to those who were directly misguided by its false and misleading broadcasts, up to and including would-be insurrectionists on January 6, 2021, deserves more accountability.
The question now is, how and from whom will that fuller democratic restitution come?