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Fox News Remains an Aberration in American Journalism
David FirestoneCredit...Drew Angerer/Getty ImagesThe decision by Dominion Voting Systems on Tuesday to settle its defamation suit against Fox News is no doubt a disappointment to the many people who have been viciously demeaned and insulted by the network’s hosts over the years and who now won’t get to see those hosts writhe on the witness

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David Firestone

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The decision by Dominion Voting Systems on Tuesday to settle its defamation suit against Fox News is no doubt a disappointment to the many people who have been viciously demeaned and insulted by the network’s hosts over the years and who now won’t get to see those hosts writhe on the witness stand as they are forced to admit their lies. But the settlement is also a lost opportunity for the profession of journalism.

A six-week trial, especially if it ended in a victory for Dominion, could have demonstrated to the public in painstaking detail what an abject aberration Fox has become among American news organizations. In-person testimony would have illustrated what the pretrial evidence had begun to show: that Fox hosts and executives knew full well that the conspiracy theories they peddled about the outcome of the 2020 election were false, but they broadcast them anyway to hang on to viewers who didn’t want to hear the truth. A loss by Fox, with a staggering damage award, would have demonstrated that its behavior was so exceptional and outrageous that it had to be punished.

People inclined to believe that all news organizations deliberately lie to build their audience may not consider Fox’s actions to be the least bit aberrant. But if that were true, there would be a lot more trials like the one that almost happened in this case. In fact, there have been very few media trials in recent years — the number is usually in the single digits each year, according to one study — compared with the thousands of civil trials each year. Most defamation cases are dismissed before they ever get near a trial, in part because the plaintiff could not come close to proving a news organization met the “actual malice” standard set out in the landmark New York Times v. Sullivan case of 1964 but also often because the plaintiff couldn’t even convince the judge that the defamatory material was false. News organizations also win dismissals by persuading judges that the material at issue is a legitimate opinion or is a “fair report” of allegations made at a public meeting or trial.

Fox couldn’t persuade a judge of any of those defenses. In fact, the judge in this case, Eric Davis, ruled in March that it “is CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true” — a decision that was a huge setback for Fox and may have led to its eagerness to settle the case.

Most defamation cases that are not dismissed are settled before trial, and the Dominion case essentially fits that pattern even though a jury had already been selected. But the size of the monetary settlement that Fox must pay, $787.5 million, also makes it a huge outlier. The next-largest publicly disclosed settlement of a defamation case against a major news organization was reached in 2017, when ABC News settled a case for at least $177 million. (Alex Jones, who was ordered last year to pay over $1.4 billion to families of victims in the Sandy Hook shooting, is not part of a legitimate news organization.)

Still, nothing would have compared with a full-length trial in this case and a victory for Dominion, which many legal experts said was a strong possibility. That kind of defeat for a major news organization almost never happens, and the reason is that journalists in conventional newsrooms, unlike their counterparts at Fox, don’t actually plot to deceive their audiences. They might make mistakes, they might be misled by a source or they might cast a story in a way they later regret, but with very rare exceptions they don’t deliberately lie.

The emails and text messages demonstrating Fox’s knowing deceit, which came out in pretrial discovery, were shocking both in their cynicism and in their deviation from industry norms. Vociferous press critics on the right and the left will scoff at this notion, but the fact is that journalists in functional newsrooms want to tell the truth. And they do so not because they fear getting sued but because that’s why they got into the business. I’ve worked for more than four decades in six American newsrooms, large and small, and the pattern of behavior shown by Fox would have been unthinkable in any of them at any time.

That’s why a loss by Fox would not have raised significant press freedom issues, nor would it have increased the threat that journalists would regularly be sued for defamation. Because of the Sullivan case, news organizations are protected from libel judgments if they do not recklessly disregard the truth or engage in actual malice, which almost all newsrooms scrupulously avoid doing. Fox, however, sped right past those red lights, got caught and then spent an enormous amount of money to avoid the stain of a potential guilty verdict and the spectacle of its chairman, Rupert Murdoch, testifying to its dysfunction. (The company again demonstrated its disdain for the truth by issuing a statement on Tuesday afternoon saying the settlement demonstrated its “commitment to the highest journalistic standards.”) A second chance at clarity is coming with a libel suit against Fox by a different voting-technology company, Smartmatic. Maybe this time the opportunity to perform a public service by conducting a trial will outweigh the temptation of a Fox settlement offer.