Why Fox had to settle

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WILMINGTON, Del. — It is deeply disappointing that Fox News settled the defamation lawsuit brought by Dominion Voting Systems before Rupert Murdoch and his roster of celebrity propagandists had to testify. But it is not surprising. Fox News, after all, had no viable defense.

On Tuesday, I arrived at Superior Court here at 7 a.m. to secure a seat for what I, like many others, hoped would be an epic trial about the falsehoods Fox aired after the 2020 election, when it accused Dominion and the voting technology company Smartmatic of perpetrating heinous voter fraud. Jury selection took all morning, and opening statements were scheduled for the afternoon.

More than anything, I was curious about what Fox's lawyers would say, because there seemed so little that they could say. Part of Fox's sinister on-air brilliance is the way it encases its audience in a comprehensive alternative reality. But now, for once, the network would be forced to account for itself outside the right-wing bubble. How it would possibly do so was a matter of great suspense.

Already, Eric Davis, the judge in the case, had ruled in Dominion's favor on key issues. "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," he wrote in a March 31 pretrial decision, a rare judicial use of all-caps bold italics. Fox's statements, he ruled, constituted "defamation per se."

Davis prohibited Fox from arguing that the network was merely reporting on allegations made by Donald Trump and his lawyers, which Fox contended were newsworthy whether or not they were true. So the case would turn not on whether Fox had aired defamatory falsehoods, which Davis determined it had, but on whether, in airing defamatory falsehoods, Fox had displayed "actual malice" — essentially, reckless disregard for the truth.

"To defend this case, Fox witnesses must be able to testify about the reasons why Fox covered the allegations on the air," said the filing. "Fox witnesses will all testify that they covered the Dominion-related allegations because the allegations were part of the most newsworthy story of the day." This, even though Davis had specifically ruled that this argument was invalid because, among other things, "the evidence does not support" the contention that Fox "conducted good-faith, disinterested reporting."

In order to defend Fox from a finding of actual malice, its lawyers seemed set on bringing Fox's alternative reality into the courtroom, acting as if taking Trump and his attorneys at their word was a perfectly reasonable thing to do. Testimony and documentary evidence, Fox's lawyers said in the filing, "will show that the president and the lawyers bringing the election fraud lawsuits continuously told Fox that they had evidence to support their claims and that they would be presenting that evidence to courts." That, in turn, explains why the Fox hosts "did not know that the president's allegations were false or harbor serious doubts about the truth of the allegations."

In other words, they can't be blamed for treating the president of the United States as a reliable source.

Responding to the filing, Davis refused to give Fox the green light it sought. If the network's lawyers wanted to make the arguments that they were telegraphing, they would have to take their chances in front of the jury, and risk getting shut down. On Tuesday morning, Davis reminded the parties that they would not be able to make arguments "about things that I've ruled inadmissible." I was waiting to hear what Fox's lawyers were going to argue instead.

But after lunch, the jury didn't return, and Davis came back to the courtroom only briefly before beckoning some of the lawyers out. The hours ticked by while the journalist-filled audience grew increasingly restless. Courtroom protocol against texting or using the internet gradually collapsed. News broke that the judge had ordered a special master to investigate whether Fox had "complied with their discovery obligations." (The network had previously been sanctioned for withholding evidence.) Rumors about a settlement buzzed through the room.

Fox is paying Dominion $787.5 million, which appears to be one of the largest defamation settlements in history and is one that constitutes a humiliating admission of fault by the network, even though, as the New York Times' Jim Rutenberg reported, the deal doesn't require Fox to apologize. But the public will be deprived of seeing Murdoch, Sean Hannity, Tucker Carlson and several of their colleagues grilled on the stand, forced to reckon with the real world, unable to fall back on the dense lattice of misinformation that typically sustains Fox's narratives.

At least, the public will be deprived for now. Smartmatic is still suing Fox for $2.7 billion, though no trial date has been announced yet. "Dominion's litigation exposed some of the misconduct and damage caused by Fox's disinformation campaign," Smartmatic lawyer J. Erik Connolly said in a statement Tuesday. "Smartmatic will expose the rest."

I'm not sure I believe it — Fox has just shown the world what it's willing to pay to avoid the unmasking. But reality isn't done with Murdoch and the rest of them yet.