For those of you who haven’t heard, Fox news has apparently agreed to pay Dominion–the company that makes many of America’s voting machines–for an incredible $787.5MM, to settle a lawsuit claiming that Fox News lied about the accuracy of the company’s voting machine results.
This is an absolutely staggering settlement in a case arising out of claims of defamation against a news outlet. And it would never have been possible without absolutely incredible lawyering in my view, and a little bit of luck.
So backing up, since the days of N.Y. Times v. Sullivan, suing a news outlet for covering a story of public interest in this country is… hard. And that is for good reason. The media needs to be free to move quickly and report–hopefully accurately–on news it discovers and learns. And while it may be wrong from time to time, the First Amendment grants the media the privilege to “do its best” when information the public needs to know is at stake.
In order to succeed in a defamation trial against the media on an issue of public concern, then, the media outlet must have shown some form of “actual malice”–a very high showing that requires, at minimum, reckless disregard for the truth. Hence, a media report may be wrong from time to time, but as long as they aren’t–in essence– intentionally lying the suit is going nowhere.
On top of that, in most cases a Plaintiff in defamation suit must show the false statements actually caused real damage to them. Merely saying something bad about somebody–again, subject to some exceptions–isn’t going to get really damage them in most cases, and proving real damage can be very tricky and requires a combination of great expert witnesses and a little bit of sorcery.
And just to complete the “hardest cases to bring” trifecta–statements of opinion are absolutely not actionable. So whereas you might not be able to say “so and so is a dirtbag” and get away with it you can say “so and so is a dirtbag, in my opinion” and you’re perfectly ok. Fox News personalities’ of course are well aware of the opinion defamation loophole and use it with startling effectiveness to advocate for various causes.
Against this tough backdrop, Dominion decided to file suit against “the most powerful name in news”–an absolute media juggernaut in this country–for $1.6BB (a sum that is seemingly more than it is worth). The odds of this case succeeding as it has seemed–to me at least–exceptionally unlikely.
To win, Dominion would literally have had to show that Fox News allowed its “journalists” to falsely report facts about Dominion, essentially knowing these facts were untrue and show that those statements damaged Dominion to an extent that is seemingly impossible.
That means Dominion would have to prove that its machines did work, that Trump did lose the election, that Fox New essentially knew this, that it went ahead and lied to its viewers in factual statements claiming otherwise, and that Dominion suffered massive damage as a result. Eesh. That’s a tough case on a ton of levels.
Accordingly, if Dominion lawyers were doing their job, they probably told their client some form of “this is a long shot” to “this is a hail mary” before the suit was filed. And their client probably said something like “its the principle of the thing” and they filed suit.
Well, given how effective Dominion’s attorneys proved to be, I suspect they were doing their job the entire time. I read a report somewhere that the settlement they achieved was actually 10x higher than the entire value of Dominion. And it is certainly the largest–and to me the unlikeliest–defamation settlement in history. So this is just absolutely incredible work.
These lawyers were able to achieve this result through FANTASTIC use of discovery. Seeking materials that Fox news certainly did not want to turn over, and pushing or that discovery against a tough effort to keep it out of Dominion’s hands is precisely what lead to the result here.
In discovery–which are tools used by civil litigants to poke and prod the other side and require production of records that are relevant to a case– Dominion’s attorneys learned that many Fox News personalities and journalists–and apparently even the head of the company Rupert Murdoch–believed the claims against the Dominion voting machines were completely hogwash. But they went ahead and spread false reports about Dominion because they were afraid of losing their audience base– hardcore right wingers who believed Trump had won the election and were turning to different news outlets who would tell them so.
If there is one thing the last 10 years has taught us it is that people only want to hear the news they want to hear. People don’t want facts. They want information that supports their viewpoint and they will tune out–and even flat out reject–news that flies in the face of their own opinions.
For trial lawyers this is not surprising. Anyone who has tried a large number of jury trials knows that opening statement is FAR more important than closing argument (and voir dire is even more important still.) Once a person makes up their mind, they view all of the evidence–even the credibility of witnesses–through the lens of that opinion. So most cases are won and lost by lawyers before the witnesses ever take the stand.
For Fox News, they apparently understood their viewers had made up their minds that Trump had won the election despite the lack of any evidence to that effect. And if Fox News wasn’t willing to tell them so, they were going to go elsewhere–and Fox knew it.
So it was decision time. Would Fox News have backbone and integrity and tell the truth to a rabid audience who had no taste for it?
But the remarkable thing is how effective Dominion’s lawyers were at getting to the truth in the civil lawsuit. And there is, I suppose, another lesson here–the power of the judicial system for getting to the truth.
I tell my lawyers all the time– “In this business, whoever gets to the truth first wins.” And I like to win.
Most people think of lawyers as dishonest charlatans who con people, which is weird and in my experience completely untrue. Much the opposite lawyers use incredibly powerful machinery to determine what the truth is and then provide advice and counsel to their clients of the legal consequences of that truth. Very few cases go to trial because one side or the other can effectively learn that the truth is not on their side–and juries always seem to get to the truth (even if for the wrong reason many times.) Which is why I win so many trials 😉 And the faster a lawyer can get to the truth the more effective and timely their advice is.
So getting back to Dominion, its lawyers used the powerful tools available to it in litigation to learn stunning facts about Fox News’s apparent decision to intentionally mislead a massive number of Americans and bring the nation to a stunning frothy swirling breaking point that culminated in a pack of Trump fans storming the Capital and trying to hang politicians who wouldn’t obey him. All so that Fox could make a bit more money.
Yet even with all of this great evidence, the case against Fox was still not a slam dunk. Remember–Dominion had to prove actual damage. But beyond a handful of wonky tin-foil hat types in a couple of rural counties nobody, seemingly, taken any steps to stop using Dominion voting machines. All across the country the machines were used again the next election. For Dominion’s lawsuit this was bad news– all the lies being spun about them hadn’t actually hurt them. Uh oh.
That’s when Dominion lawyers shifted to the great Art of Leverage. Any good litigator knows this tool exceptionally well. Sometimes it doesn’t matter how strong or weak the case is. Other factors matter more. And that was CERTAINLY the case for Fox News.
Could you imagine Tucker Carlson taking the stand and having to testify under oath in trial that he knew Trump lost but went ahead and suggested otherwise–undermining democracy in this nation in the process?
And on that later point, there was more than money at stake for Fox News and Dominion’s lawyers knew it. There was a very real chance that the FCC would consider pulling Fox News’ broadcasting license if it turned out they really were lying to viewers about a matter impacting the stability of this Nation’s elections. All public broadcasting licensees are required to operate in the public’s best interest–and falsely convincing people that their votes don’t count is not, at all, in the nation’s interest.
So Fox was absolutely in a corner–and even though Dominion had no chance of winning a judgment as high as it was seeking (and may have even lost given the high standards here) it was able to leverage Fox’s fear of damaging and painful testimony to extract an eye-popping $787.5MM out of Fox here.
Now some will say Fox was just outmaneuvered and outclassed by Dominion’s lawyers and this result isn’t “fair” in the true sense of the word. After all, if Dominion never had a chance of winning this much at trial, this just shows that litigants can just leverage one another into massive settlements depending on how great their lawyers are.
So keep that in mind next time you’re looking for counsel. Dominion’s lawyers were incredible. They deserved to win. And they did. Massively. And my hat is off to them.
And one last thing– may the cost of lies always be so high.
The First Amendment does not protect lies. Never has. Never will. The truth matters. And its about time this country got back to admiring and respecting facts and good journalism again.
Too bad that only seems to exist on TCPAWorld.com these days…
But that’s just my opinion. 😉