Dominion v. Fox is Just the Beginning

Quinta Jurecic
Wednesday, April 19, 2023, 12:42 PM
The settlement is best understood not on its own, but as the most prominent example so far of a trend toward using defamation litigation to counter election lies.

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“Money is accountability,” announced Stephen Shackelford, a lawyer for the voting machine company Dominion, moments after a Delaware superior court judge announced that the company had settled its lawsuit against Fox News. The case was set to be a blockbuster defamation trial, a challenge to the many lies told on Fox after the 2020 election about Dominion’s supposed role in stealing a second term from President Trump. But in the end, the parties chose to settle just before opening statements were set to begin. Fox ultimately agreed to pay $787.5 million, a hefty fraction of the $1.6 billion that Dominion originally sought in damages and one of the largest defamation payouts ever reported in the United States. In a statement, Fox said, “We acknowledge the Court’s ruling finding certain claims about Dominion to be false.”

For many onlookers who were hoping to see Fox hauled over the coals in court for its election lies, news of the settlement was a disappointment. All the same, the pretrial discovery process allowed Dominion to make public an extraordinary amount of damaging information about Fox’s operations and the mechanics of the Big Lie of 2020 election fraud. And there are other cases yet to come. Dominion v. Fox is best understood not on its own, but as the most prominent example so far of a trend toward using defamation litigation to counter election lies—and what the case has and hasn’t achieved along those lines speaks to both the promise and the limitations of this strategy.

The Big Lie cohered over the weeks and months around the election. It was stitched together out of an enormous number of smaller lies about the actions of specific companies and individuals, which Trump and his allies used as fuel for their larger claims. As the Jan. 6 Committee documented, Rudy Giuliani and others seized on video of ballots being counted in Fulton County, Georgia as evidence of misconduct—accusing election worker Shaye Moss and her mother, Ruby Freeman, of rigging the vote. Eric Coomer, an employee of Dominion Voting Systems, received a deluge of threats after a right-wing podcaster falsely claimed he had schemed with “Antifa” to prevent Trump from winning the election. 

Along with another voting technology company, Smartmatic, Dominion quickly became a major villain on the right. Standing alongside Giuliani at a now-notorious press conference, Trump-aligned lawyer Sidney Powell falsely claimed that both companies “were created in Venezuela at the direction of [former president] Hugo Chávez” and were involved in a scheme to interfere with American elections. On Nov. 8, 2020, the day after news networks declared Joe Biden the president-elect, Fox Business host Maria Bartiromo invited Powell on her show to discuss how Dominion was “flipping votes in the computer system or adding votes that did not exist.” As Trump continued to insist that he had actually triumphed in the election in the following weeks, Fox Business host Lou Dobbs and Fox hosts Jeanine Pirro and Sean Hannity continued giving airtime and credibility to the conspiracy theory. 

Dominion alleges that they did so as part of an editorial decision by Fox to feed conspiracy theories about the 2020 election. In Dominion’s telling, Fox faced a backlash from its viewers—and in particular its most powerful viewer, Trump—after calling Arizona for Biden on election night. Meanwhile, other far-right networks like OANN and Newsmax continued to peddle claims of election fraud. In an effort to win back its viewers from competitors like Newsmax, Dominion argues in its motion for summary judgment, Fox decided to commit to selling election lies, “caring more about protecting its own falling viewership than about the truth.”

Dominion filed its first defamation lawsuit—against Sidney Powell—on Jan. 8, 2021, just two days after the insurrection. It was a few weeks behind Eric Coomer, who on Dec. 22, 2022 sued Giuliani, Powell, the Trump campaign, and a number of right-wing media personalities, networks, and publications for spreading lies about him.

Over the rest of 2021, the lawsuits poured in. Separately, both Dominion and Smartmatic filed cases in both state and federal court against Fox News Network and Fox Corporation, as well as the far-right networks Newsmax and OANN and a suite of other television hosts and election deniers. Coomer docketed a second lawsuit against a conservative talk show host who, he alleged, continued to spread lies about Coomer’s supposed involvement in interfering in the 2020 election. Moss and Freeman, the Georgia election workers, sued Giuliani, OANN, and the right-wing website Gateway Pundit. A Pennsylvania postmaster who had been the target of lies over his supposed role in stealing the election filed suit against the conservative media organization Project Veritas for amplifying the allegations.

As defamation cases go, these are unusual. Traditionally, defamation litigation, particularly against the press, has often been a tool used by the powerful to silence their critics. This was the Supreme Court’s rationale in Sullivan for requiring plaintiffs to clear the high bar of showing “actual malice” on the part of the defendant: the Court objected to “the possibility that a good faith critic of government will be penalized for his criticism,” writing that such an idea “strikes at the very center of the constitutionally protected area of free expression.” When Americans think of defamation litigation in connection with preserving democracy, they often think of the importance of defending journalists or members of the public from defamation suits meant to shut them up. 

But the post-2020 slate of defamation cases invert this pattern. Here, the plaintiffs often position themselves as defending democracy from falsehoods. “One thing our cases have in common is that they are on behalf of people who’ve been targeted for participating in the basic functioning of our democracy,” Sara Chimene-Weiss, counsel with the group Protect Democracy, told me in an interview. Protect Democracy represents Moss and Freeman along with the Pennsylvania postmaster Robert Weisenbach, and is also representing Mark Andrews, a Florida voter suing over his portrayal as an illegal “ballot mule” in the conspiratorial film 2000 Mules. (Full disclosure: Protect Democracy has represented Lawfare editors in certain FOIA and other matters unrelated to defamation.) Chimene-Weiss went on, “It’s essential for democracy that we protect the right to participate in free and fair elections, without fear of consequences.” 

Dominion has leaned into this framing as well. In a statement released after the announcement of the settlement, the company’s CEO John Poulos thanked “the election officials we serve,” saying, “Without them there is no democracy, and they work tirelessly to that end and deserve much better.” 

In positioning these cases as battles for democracy, advocates focus not only on the need to defend the electoral process, but also on litigation as a tool for countering falsehoods. “The truth matters. Lies have consequences,” said Dominion attorney Justin Nelson in the post-settlement press conference. Likewise, Protect Democracy attorney John Langford told NPR in March 2022, “We can't have a functioning democracy if we don't have a shared understanding of facts. And we can't have a shared understanding of facts if there's a universe of groups out there that are intentionally, willfully or recklessly spreading lies about things like the legitimacy of elections or important public facts that are critical to public debate.” 

The runup to the Dominion trial saw a great deal of rhetoric around the courtroom as a space uniquely suited to cut through the noise and get to the truth—a place well-suited, perhaps, to responding to the Big Lie in a way that other forums may not be. “It appears that disinformation itself is on trial,” said media law professor Jonathan Peters in the Washington Post. In a March 2022 interview, Dominion lawyer Rodney Smolla told the New York Times that defamation law is “one of the few legal avenues in which civilized countries have attempted to distinguish between truth and falsity.”

These cases are also unusual in the sheer strength—and volume—of the evidence marshaled by the plaintiffs. The Sullivan standard of “actual malice” is a difficult one to meet: In cases involving alleged defamation of a public figure, the plaintiff must show that the defendant either knew the statement in question was false or made it “with reckless disregard of whether it was false or not.” For that reason, relatively few defamation cases make it to trial. But in almost all of the post-2020 suits, judges have denied defendants’ motions to dismiss—the first major hurdle at which the litigation might have fallen. These cases tend not to center on a single comment or article but instead an extensive story of falsehoods told over and over again, in many instances after the defendant was told that the information in question was dubious or outright untrue. 

During the pretrial discovery process, Dominion unearthed an enormous amount of material damaging to Fox. The documents, which received extensive attention in the press, showed Fox hosts, producers, and leadership repeatedly expressing doubts about the conspiracy theories around Dominion—before the network went on to air more of those claims anyway. They also underline just how flimsy the evidence supporting those theories turned out to be: One of the strangest documents uncovered in discovery is an email that appears to be the source of the claim that Dominion was involved in a conspiracy to flip votes from Trump to Biden, which was sent to Sidney Powell—and forwarded by Powell to Bartiromo—by a woman who also wrote that, “The Wind tells me I’m a ghost, but I don’t believe it.” In news coverage of the case, defamation lawyers emphasized again and again just how unusual it was to see this detailed a record of a media organization’s awareness of potential falsehoods. The evidence was “incredibly damning,” Sonja R. West, a First Amendment scholar at the University of Georgia law school, told the Washington Post.

On the strength of this evidence, the judge in Dominion’s case handed the company a major victory on March 31, finding in a ruling on both parties’ motions for summary judgment that Dominion had shown Fox to have broadcast lies. Using both italic and bold font for emphasis, the judge wrote, “The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true.” Such a ruling in a defamation case is extremely rare, and left for the jury only the question of whether Fox had acted with “actual malice” as well as the matter of damages incurred by Dominion. 

For this reason, in the runup to the beginning of the trial—and what turned out to be the settlement—Fox was playing with an unusually weak hand. It’s not hugely surprising that the company chose to settle. 

Dominion CEO Poulus commented in his statement that “we have sought accountability and believe the evidence brought to light through this case underscores the consequences of spreading and endorsing lies.” Even in the absence of a trial, it’s worth underlying just how significant the discovery material released by Dominion was: Media reporter Brian Stelter, one of the closest observers of Fox and the author of a book on the network, wrote in The Atlantic that the documents brought him a new understanding of Fox’s pathologies. That forcible transparency is worth taking seriously as a victory.

The other defamation cases have notched wins as well. Georgia election workers Moss and Freeman reached a settlement with OAN, which according to the Wall Street Journal involved an agreement by the network to air a segment explaining to viewers that the two women “did not engage in ballot fraud or criminal misconduct.” Newsmax published an apology and retraction of its coverage of Eric Coomer following his suit against the network. 

And there is real reason to think that the threat of litigation could dissuade future lies. In fact, there’s reason to think that it may already have done so. Fox canceled Lou Dobbs’s show—which pursued 2020 conspiracy theories with particular enthusiasm—immediately after Smartmatic filed its suit against the network. OAN has lost much of its audience after being dropped by both Verizon and DirecTV. Dinesh D’Souza, the right-wing media personality who produced and starred in the film 2000 Mules, complained on Twitter that Fox News and Newsmax had declined to bring him on air to discuss the movie. D’Souza’s book on the same subject was briefly recalled by its publisher and had incendiary and potentially libelous language removed. It’s also noteworthy that the 2022 election saw far fewer of the kind of targeted lies that characterized the environment around the 2020 election—suggesting that news organizations that might have been interested in broadcasting such claims might have been deterred. 

At the same time, the frustration around the Dominion settlement is a reminder of the limitations of defamation law as a tool for cutting through lies. The nature of a defamation lawsuit is that it requires an individualized injury to a particular plaintiff, and that plaintiff’s interests will often be best served by the certainty of a settlement rather than the gamble of a trial. Despite its victory in the judge’s ruling on summary judgment, Dominion faced plenty of hurdles in proving actual malice. It was also far from certain that the company would be able to secure a hefty payout. The incentives cut in favor of Dominion taking a settlement, even though a trial might have served an important public function. 

And this will continue to be true in other defamation cases. Defamation law “often meets its narrow aim of compensating the defamed party for its reputational injury without serving the broader, more amorphous goal of unringing the bell, let alone correcting a lie circulating in society,” law professors RonNell Andersen Jones and Lyrissa Lidsky write. Along those lines, reporting suggests that the settlement will not require Fox to admit or apologize to spreading false claims about Dominion. “Defamation suits can be a tool in the disinformation battle but are never going to be the full solution,” Andersen Jones told me over email after the settlement was announced. 

What’s more, there’s no guarantee that news of victories against lies in court will travel to the audiences that most need to hear it. The right-wing media has largely been silent on the matter of the Fox case—and in at least one instance, the outlet The Gateway Pundit misrepresented a filing in the Dominion litigation as actually providing evidence of 2020 election fraud. After news of the Dominion settlement, Fox remained relatively quiet; the story about the settlement published on the network’s website is remarkably short, doesn’t mention the amount of the settlement, and provides few details about what exactly Dominion was suing over. The courts are only one institution in a larger civic ecosystem, and they can’t substitute for the larger political and cultural failures that prevent truths about the 2020 election from being communicated by trustworthy outlets to audiences, and that prevent those audiences from believing those truths. 

How much of an effect will this litigation have on Fox, in the end? Smaller outlets like Newsmax and OANN are more vulnerable to lawsuits like these, which could create genuine financial problems. But Fox is a juggernaut: according to the New York Times, the Fox Corporation “had about $4.1 billion ‘of cash and cash equivalents’ on hand at the end of last year.” And when I spoke with Andersen Jones last week, before the trial was set to begin, she emphasized that Fox’s financial incentives could well cut in the direction of continuing to air politically palatable falsehoods when its audience demanded it. “Dominion thinks that it can prove there was a conscious corporate decision to tell defamatory lies for audience share and profit,” she said. “Assuming the environment is as Dominion claims it to be, that same gravitational pull is going to continue regardless of the outcome of this case.”

But the Dominion case could do a real public service by bringing attention to that dynamic, Andersen Jones suggested. Acknowledging the problem of the demand for falsehoods, as well as the supply, “is itself really helpful in focusing our public conversations about disinformation,” she said. It helps build a more nuanced understanding of the problem of falsehoods polluting our politics, and of just how complicated it will be to formulate an adequate response.

However the incentives align for Fox in the aftermath of the Dominion settlement, other plaintiffs were eager to remind the press that Dominion’s suit was only one of many and that this story of seeking accountability is far from over. The voting machine company Smartmatic, whose own lawsuit against Fox is moving forward in New York state court, made a pointed statement to reporters immediately following news of the settlement. “Dominion’s litigation exposed some of the misconduct and damage caused by Fox’s disinformation campaign,” the company said. “Smartmatic will expose the rest."

Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.

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