There’s a chance the long-awaited Dominion Voting Systems v. Fox News defamation trial might not happen after all: The judge delayed the start of the trial from Monday to Tuesday as the two sides engaged in late settlement talks.
But a settlement would help Fox avoid an additional and potentially significant weeks-long spectacle casting an even harsher spotlight on its editorial decisions.
Below is a look at the pros and cons of settling for both sides.
The main utility of a settlement is that it would avoid a lengthy, drawn-out media spectacle that could last five or six weeks and result in even worse penalties. It might also allow Fox to obscure some of the terms of the agreement, including the payout, and to possibly avoid admitting fault (depending upon the terms).
Dominion is suing for $1.6 billion, but that’s really just a ballpark figure that Dominion designated at the start of its lawsuit.
Rupert Murdoch and his companies often settle such matters, as they did in a scandal in Britain more than a decade ago, when one of his tabloids was accused of hacking the phones of celebrities, royals and crime victims to get its stories; in sexual misconduct cases; in a gender discrimination case; and in a case in which Fox hosts spread conspiracy theories about the murder of a Democratic Party staffer.
Many high-profile Fox figures have been expected to testify at the trial, including Murdoch and hosts like Tucker Carlson, Sean Hannity, Maria Bartiromo and Jeanine Pirro.
And history shows how fraught going to trial could be.
Murdoch, the 92-year-old head of News Corp., was last in the hot seat in 2011, during a legal drama that had plagued his media empire for years. He testified before the British Parliament about the hacking scandal involving his now-defunct tabloid News of the World.
Murdoch began with contrition, calling it “the most humble day of my life.” But as the hearings wore on, it became clear how uncomfortable this was. Murdoch’s son James repeatedly tried to answer questions posed to his father, and Rupert Murdoch became more combative over time. When he was asked whether he was “ultimately responsible” for the scandal, he responded curtly, “No.”
And then there’s Murdoch’s deposition in the Dominion case. In addition to admitting that his hosts spread falsehoods about a purportedly stolen election, Murdoch said host Maria Bartiromo’s show had “zero audience”; he claimed he hadn’t read an article even though there was evidence showing that he had commented on it; and he offered conflicting answers about sharing private campaign advertising information with President Donald Trump’s son-in-law, Jared Kushner.
As that last example shows, it’s not as if this hasn’t already resulted in substantial and decidedly untidy revelations about Fox. Fox has been shown to have proactively spread highly dubious and even false information in the service of its business model, talked dismissively about its audience and its own hosts, and effectively aligned even its non-opinion operations with the goals of Trump and the Republican Party.
And indeed, to settle at this point — after all of that — would perhaps rightly be viewed as acknowledging a major defeat.
In addition, Fox could fork over a substantial amount of money. It perhaps wouldn’t be enough to permanently damage Fox News, given Fox Corp. had a reported $4 billion in cash at the end of 2022. But a settlement in the billions would obviously do real damage.
(For example, the phone-hacking scandal has been estimated to have cost about $1 billion, all told, and resulted in Fox shelving a huge bid to take over British Sky Broadcasting.)
That wouldn’t necessarily be the end of the matter. Fox is still facing a defamation lawsuit brought by another voting technology company, Smartmatic, whose claims are similar to Dominion’s. And Fox also faces the prospect of shareholders bringing suit (one did last week) alleging that the company’s failures hurt the value of their assets.
Settling for Fox would also foreclose the possibility that an adverse outcome could be appealed. The New York Times reported Sunday that some at Fox have floated the possibility that a conservative-leaning Supreme Court might ultimately overturn a judgment against it.
(That would be a pretty remarkable event, though, especially considering two conservative justices — Clarence Thomas and Neil M. Gorsuch — have actually floated the idea of lowering the bar for media defamation cases.)
The biggest pro is that, at this point, it’s pretty clear this would come with a hefty price tag for Fox. Dominion has apparently driven a hard bargain in previous discussions about settlements, and holding out appears to have paid dividends. It would also be able to avoid a drawn-out and uncertain court battle that might include a series of appeals.
But Dominion would still have also been able to detail, through the discovery process, much of the inner workings that demonstrate just how shoddy Fox’s editorial decisions about Dominion were. To the extent its goal was also to expose a media outlet that it believes defamed it, it has accomplished plenty. If this was also about sending a message, that message has been sent.
Indeed, the judge has already ruled that it was “CRYSTAL clear” that Fox’s claims about Dominion were false. The real question is not whether the claims were false, but whether they meet the “actual malice” standard for defamation.
Dominion would also seem to be in a good position to dictate other terms in a settlement. A major question that looms over it would be whether it would force Fox to admit fault and apologize.
While Dominion has clearly made headway in making an example of Fox, nothing would do that like an actual judgment, the terms of which would be here for everyone to see. A trial would certainly cast a renewed spotlight on Fox — though perhaps not as much of a spotlight as there could be, given there would be no cameras in the courtroom.
It also stands to reason that a settlement would be for less money than the two sides generally agree could result from protracted litigation.
Beyond that, there’s the matter of what a settlement would mean moving forward. While Murdoch has reached a series of settlements before, that hasn’t always been the end of the matter. For example, he later offered a very different take on the phone-hacking scandal than he did in his public testimony. And in the case of the settlement over Fox’s reporting on murdered former Democratic National Committee staffer Seth Rich, Fox host Carlson later obliquely alluded to the discredited theories anyway (albeit without mentioning Rich).
Carlson has recently demonstrated how stolen-election theories can live on at Fox, even as it has faced severe legal jeopardy for specific claims. Indeed, that might suggest a settlement would merely motivate Fox and others to speak in more general terms when floating bogus theories.
Dominion might be more interested in its bottom line than in its role in the future of democracy, but the latter still hangs in the balance.
