On the menu today: The week began with signs that Fox News was looking for a settlement in Dominion’s defamation case, and by Tuesday afternoon, the two sides reached a deal: a stunning $787 million payment to Dominion, and a declaration from Fox that, “We acknowledge the Court’s rulings finding certain claims about Dominion to be false” — but no on-air statements, corrections, or apologies. (Note that Fox News still faces a similar $2.7 billion defamation lawsuit from Smartmatic, another voting-machine company.) Fox News’ statement yesterday said, “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.” But it is likely that the world of cable news will indeed be altered by this settlement, as this outcome teaches the industry three hard lessons.
A Cable Course Correction
One: There can be catastrophic financial consequences for adopting and repeating the lies of the former president.
If you choose to believe the 2020 presidential election was stolen, you must also believe that there is a compelling pile of verifiable evidence that, for some inexplicable reason, was never presented by Donald Trump’s presidential campaign in its myriad post-election lawsuits in November and December 2020. Furthermore, you must believe that when facing a $1.6 billion defamation lawsuit from Dominion, Fox News never presented any of this evidence as a defense in this defamation lawsuit. Truth, or substantial truth, is an absolute defense in a defamation case.
If you choose to believe the 2020 presidential election was stolen, you must believe Fox News agreed to pay $787.5 million to Dominion in a settlement, rather than present any of that evidence. You must believe that Fox News had a quick and easy way to win this lawsuit and simply refused to use it — even though the news distributor had more than 700 million good reasons to point to this evidence, if it existed.
But Fox News did not present that evidence; in fact, Fox Corporation chairman Rupert Murdoch said under oath that he believes the 2020 presidential election was free, fair, and not stolen. Fox News did not present any evidence contending that the 2020 presidential election was not stolen, because the 2020 presidential election was not stolen, and there is no compelling evidence that the 2020 presidential election was stolen. Period, full stop, do not pass go, do not collect $200.
Some of you might be thinking, “That’s not much of a hard lesson.” No, the hard lesson is that a CNN poll last month asked 1,045 Republicans or Republican-leaning independents, “Thinking about the results of the 2020 presidential election, do you think that Joe Biden legitimately won enough votes to win the presidency, or not?” The survey found just 37 percent of these Republicans or Republican-leaning independents believe that Biden legitimately won; 63 percent believe “Biden did not legitimately win enough votes to win the presidency.”
Of those who said Biden’s win was illegitimate, 52 percent said they had seen “solid evidence” of that; the other near half said their opinion was only based upon suspicions.
This is going to make covering former president Trump potentially litigious matter going forward, as Trump is unlikely to ever back down from his conspiracy theories and could repeat his false and defamatory claims about any of the voting-machine companies at any time. Any television network covering Trump will feel a need to push back against those claims, early and often, and on-air.
Two: A network’s responsible journalism is not a useful legal defense against a network’s irresponsible and defamatory journalism.
Before I spoke to Paul Clement, the lawyer representing Fox News in the Dominion and Smartmatic lawsuits, I thought Fox’s position was pretty weak. By the end of our conversation/interview, I grew convinced that Fox had a decent defense — that Dominion had legit and strong grounds for a defamation case against Trump surrogates such as Rudy Giuliani and Sidney Powell, but that the actions of the network were largely different. Previous defamation law had established the neutral-report privilege — the notion that covering a public figure’s false accusations was not inherently defamatory, so long as it was newsworthy — and the privilege of opinion, as statements of opinion cannot be objectively measured and thus cannot be defamatory. Clement made what seemed to me a strong argument that punishing Fox News for what guests had said, off the cuff while on live television, would be an infringement of the First Amendment and the work of a free press.
But in mid March, Delaware Superior Court judge Eric Davis swatted those arguments away, and his reasoning is clear. Davis reviewed the filings of Dominion and the network and concluded that in 19 cases, Fox News hosts or guests had made comments that were false statements of fact, not assertions of opinion, and that could not be defended as standard, fair-minded inquiry.
Davis wrote, “Even if the neutral report privilege did apply, the evidence does not support that FNN ‘conducted good-faith, disinterested reporting. . . . Fox News Network’s failure to reveal extensive contradicting evidence from the public sphere and Dominion itself indicates its reporting was not disinterested.” As soon as the judge came to that conclusion, a key portion of the Fox News defense collapsed.
Some of the examples Judge Davis pointed to were the work of Trump surrogates, such as when Giuliani said on November 15, 2020, “and this company had — and this company has tried-and-true methods for fixing elections. [We] can prove that they did it in Michigan [and] . . . we’re investigating the rest.” Or on November 30, when Powell said to Sean Hannity, “The machine ran an algorithm that shaved votes from Trump and awarded them to Biden. They used the machines to trash large batches of votes that should have been awarded to President Trump. And they used a machine to inject and add massive quantities of votes for Mr. Biden.”
Other times, the host and the guest concurred on false statements about altered votes and hacked systems. During a November 16, 2020, Lou Dobbs Tonight broadcast:
Sidney Powell: No, we’ve seen willful blindness. They have adopted a position of willful blindness to this massive corruption across the country, and the Smartmatic software is in the DNA of every vote tabulating company’s software and system.
Lou Dobbs: Yes, and it is more than just a willful blindness. This is people trying to blind us to what is going on.
Other times, the host led the guest on with leading questions, or questions that treated the guests’ allegations as proven truth.
Maria Bartiromo, November 8, 2020: “Sidney, I want to ask you about these algorithms and the Dominion software. . . . Sidney, we talked about the Dominion software. I know that there were voting irregularities. Tell me about that.”
Lou Dobbs, November 13, 2020: “Sidney, at the outset of this broadcast I said that this is the culmination of what has been an over a four-year effort to overthrow this president; to first deny his candidacy, the election, but then to overthrow his presidency. This looks like the effort to carry out an endgame in the effort against him. Do you concur?”
Dobbs, December 4, 2020: “Dominion Voting Systems, you have described it with algorithms which were designed to be inaccurate rather than to be a secure system. . . .”
But in a considerable number of cases, the hosts just adopted and embraced the Trump campaign’s conspiracy theories and false assertions as their own.
Dobbs on a November 24, 2020, broadcast: “I think many Americans have given no thought to electoral fraud that would be perpetrated through electronic voting: that is, these machines, these electronic voting companies, including Dominion, prominently Dominion, at least in the suspicions of a lot of Americans.”
Or Dobbs on a November 30, 2020, broadcast:
I think most Americans right now cannot believe what we are witnessing in this election. We have, across almost every state, whether it’s Dominion, whatever the company — voting machine company is, no one knows their ownership, has no idea what’s going on in those servers, has no understanding of the software, because it’s proprietary. It is the most ludicrous, irresponsible and rancid system imaginable in the world’s only superpower. . . . As I said at the outset of the broadcast, Sidney, this is no longer about just voter fraud or electoral fraud, this is something much bigger and this president has to take, 1 believe, drastic action, dramatic action, to make certain that the integrity of this election is understood, or lack of it, the crimes that have been committed against him and the American people.
On when Dobbs tweeted on December 10, 2020, “Cyber Pearl Harbor: @SidneyPowell1 reveals groundbreaking new evidence indicating our Presidential election came under massive cyber-attack orchestrated with the help of Dominion, Smartmatic, and foreign adversaries.”
The Fox News argument was that just about everything in its prime-time hours, and on a program such as Lou Dobbs Tonight, was self-evidently opinion, and thus covered by the privilege of opinion. But Judge Davis just didn’t see it that way.
Three: It is unlikely that networks like Fox News can afford to keep loose-cannon hosts anymore.
Dobbs’s name is all over this lawsuit, and out of all of Fox News’ hosts, he offered the most comments cited as defamatory false claims of fact in Judge Davis’s ruling. Fox News dumped Dobbs and his program in February 2021, shortly after Smartmatic filed its lawsuit. It would be overstating it to contend that Lou “Who Reads National Review?” Dobbs single-handedly cost his former employer $787 million. But Dobbs made the job of Dominion lawyers a hell of a lot easier.
You notice it wasn’t Bret Baier, Dana Perino, or Howard Kurtz who got Fox News in trouble. In fact, the network’s news division and reporters are barely mentioned at all in the Dominion lawsuit. The news division, by and large, exercised appropriate skepticism about the lack of evidence for the outrageous claims of Giuliani and Powell. No, it was the prime-time opinion hosts — some would call them the “entertainment” hosts — who turned their studios into platforms for Trump-campaign surrogates to offer every nutty conspiracy theory they could think of, with minimal pushback or skepticism. Every now and then, a host like Jeanine Pirro would offer a comment or question like, “I assume that you are getting to the bottom of exactly what Dominion is, who started Dominion, how it can be manipulated if it is manipulated at all, and what evidence do you have to prove this?” But in the eyes of the court, that wasn’t sufficient.
(One irony: By November 20, Tucker Carlson was tired of Sidney Powell promising bombshell evidence and never delivering. “We invited Sydney Powell on the show. We would have given her the whole hour. We would have given her the entire week, actually, and listened quietly the whole time at rapt attention. She never sent us any evidence, despite a lot of polite requests. When we kept pressing, she got angry and told us to stop contacting her.”)
A loose-cannon host who is unpredictable and capable of saying anything — and Fox News is not the only network with on-air talent who fits this description — can end up costing his network hundreds of millions of dollars. That’s not just more than the advertising revenue of any one program; that’s a large chunk of the advertising sales for the entire network over the course of a year. The cost-benefit analysis of cable-news personalities is about to change — and the market for “you never know what he’s going to say next” is about to crash.
ADDENDUM: This week, the House Select Committee on China will run a war game, simulating a Chinese invasion of Taiwan and the U.S. response. As I discussed with Hugh Hewitt this morning, my understanding of past war games run by the U.S. military, its academies, think tanks, etc. of this kind of scenario is that they usually end in one of two outcomes: either the U.S. and its allies manage to defend Taiwan, but with enormous losses and devastating consequences for the whole region, or China eventually wins. Still, the illustrative and educational value of war games is significant, as they force players to think through unexpected scenarios and complications. Way back in 2011, I argued that the presidential-primary process needed fewer debates with candidates offering the same old sound bites, and instead should feature war games of simulated crises, demonstrating how the aspiring president would handle a hypothetical crisis.