Settlement in Dominion v. Fox News case — facts, questions, and takeaways — First Amendment News 376

Here are several facts and questions regarding yesterday’s $787.5 million settlement in the Dominion v. Fox News trial: 

1. Record settlement — The “largest publicly disclosed monetary settlement ever in an American defamation action.”
2. Admission of falsity? — This from Fox News: “‘We acknowledge the Court’s rulings finding certain claims about Dominion to be false,’ the cable network said in a statement following the news that it would no longer contest Dominion’s allegations in court.” And from The Washington Post: “It’s merely stating something that the court said without necessarily endorsing it.”
3. Headline: Fox News’s settlement in the Dominion case is big news, except on Fox News — This from Stuart A. Thompson at The New York Times: “The $787.5 million settlement was covered only three times by Fox News in about four hours after the settlement became public, amounting to about six minutes of coverage. For most of the day, including during the network’s prime-time shows, hosts appeared to be focusing on other issues, like illegal immigration and Covid-19’s possible origins. . . . Neil Cavuto, host of the afternoon news program ‘Your World with Neil Cavuto’ on Fox News, covered the settlement as news of it broke and again after the dollar figure was announced. Howard Kurtz, Fox News’s media analyst, told Mr. Cavuto that the election fraud claims about Dominion were ‘obviously false’ and ‘conspiracy theories.’ In another segment, Mr. Kurtz said that ‘both sides had an incentive to avoid a costly six-week trial.’” (Earlier this morning, nothing of the settlement was mentioned on Fox’s homepage.)
4. The damaging revelations of pre-trial discovery — “Through pretrial discovery that resulted in the release of hundreds of thousands of pages of emails, texts and other communications, Dominion showed that Murdoch, as well as Fox’s executives and producers, were aware that Trump’s claims of election sabotage were suspect, but permitted hosts and guests to perpetuate them to keep viewers from switching to other channels.”
5. Judicial limits on Fox’s defenses — Prior to settlement, Delaware Judge Eric M. Davis ruled that the “network could not dispute that it aired false, harmful statements about Dominion, though it could contest whether it did so with ‘actual malice.’” In his finding, Judge Davis wrote that 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.”
6. Fox communications executive removed from the courtroom — “Judge Eric M. Davis removed Fox communications executive and spokeswoman Caley Cronin from the courtroom after she was caught taking pictures. Cameras and tweeting from the courtroom are forbidden during the trial, which is being held behind closed doors.”
7. No contest plea? — “The settlement carries an implicit plea of ‘no contest’ to several pretrial findings from the presiding judge in the case, Eric M. Davis, that cast Fox’s programming in an exceptionally harsh light.”
8. Bill O’Reilly — Fox’s “nightmare will continue,” former Fox News host Bill O’Reilly wrote on his website. “Going forward, Fox News faces a similar lawsuit from the Smartmatic Company and perhaps thousands of lawsuits from Fox shareholders. What a disaster.” (A “major issue looming over Fox is what its shareholders might do. Shareholders can sue the network over how its decisions damaged their assets. One of them filed suit this month. Others have demanded company records.”
9. Yet another lawsuit pending against Fox — “Abby Grossberg, a former Fox employee who worked for Bartiromo and Carlson, is also suing the company, alleging she was coerced into giving misleading testimony.”
10. Smartmatic’s statement — “Dominion’s litigation exposed some of the misconduct and damage caused by Fox’s disinformation campaign. Smartmatic will expose the rest. Smartmatic remains committed to clearing its name, recouping the significant damage done to the company, and holding Fox accountable for undermining democracy.”
11. What happens to the special master investigation? — This from Daniel Arkin of NBC News: “Hours before Dominion and Fox settled, the judge overseeing the trial appointed John Elzufon as a special master to investigate how the media company handled discovery. It’s not clear what becomes of that inquiry now that the parties have settled. Asked what he expects will happen now, Elzufon said he wasn’t sure. ‘Quite frankly,’ he told NBC News. ‘I don’t know. So that’s the best answer I can give you.’”
12. Headline: “The Dominion v. Fox News Trial Will Not Be Televised: ‘It’s a Gift to Fox News’” — “The trial will not be televised. The only way Americans will be able to know what’s going on inside the courtroom—outside of getting one of the roughly 200 seats available in the courtroom—will be by calling into an audio line provided by the court. ‘It’s better than nothing, but it’s not much better,’ says Columbia Journalism School professor Bill Grueskin.”
13. Dominion is not done — “Dominion says it is not done, either, with lawyer Stephen Shackelford saying: ‘We’ve got some other people who have accountability coming toward them. And we'll move right on to the next one.’ Dominion is also suing MyPillow CEO Mike Lindell, who promoted the false election claims on Fox and elsewhere.” (“Dominion still has pending lawsuits against election deniers such as Rudy Giuliani and Sidney Powell”)
14. How much secrecy did the settlement agreement demand? How much, if any, of Dominion’s pre-trial discovery (written, digital, audio, and video) can be made public? Has any of that pre-trial discovery already been shared with others?

Related

• “The costs of risks: Is Dominion v. Fox headed to settlement?” FAN 372 (March 22)

2022-2023 SCOTUS term: Free expression and related cases

Review granted

• 303 Creative LLC v. Elenis (argued Dec. 5)
• Jack Daniel’s Properties, Inc. v. VIP Products LLC  (argued March 22)
• United States v. Hansen (argued March 27) (Volokh commentary here)
• Counterman v. Colorado (to be argued April 19)

Pending petitions

• Tingley v. Ferguson
• Frese v. Formella
• National Rifle Association of America v. Vullo
• Mobilize the Message v. Bonta
• Vidal v. Elster
• O’Connor-Ratcliff v. Garnier
• U.S. v. Hernandez-Calvillo
• Price v. Garland
• Moody v. NetChoice, LLC
• NetChoice, LLC v. Moody
• Florida v. NetChoice
• Klein v. Oregon Bureau of Labor and Industries 

State action

• O’Connor-Ratcliff v. Garnier
• Lindke v. Freed 

Qualified immunity

• Novak v. City of Parma (cert. denied)

Immunity under Foreign Sovereign Immunities Act

• NSO Group Technologies Limited v. WhatsApp Inc. (cert. denied)

Liability Anti-Terrorism Act

• Twitter v. Taamneh (argued Feb. 22) 

Section 230 immunity

• Gonzalez v. Google (argued Feb. 21) 

Review denied

• Keister v. Bell
• Morgan v. Arizona 

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This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Mr. Collins.