Fox News’s payment of $787.5 million to settle a defamation suit brought against it by Dominion Voting Systems has been cheered by many. In the days after the election in November 2020, the network gave airtime to Donald Trump’s legal aides, Rudy Giuliani and especially Sidney Powell, as they spun a tale of doctored voting machines, Venezuelan skulduggery, and spoiled election tallies. It proved true in none of its particulars. Dominion, which has election contracts in 28 states, will receive the largest defamation payout on record.
Whatever one makes of Fox’s 2020 election coverage, this settlement is a disappointment and a danger.
The present regime of press freedom took shape in the 1960s and ’70s with the Supreme Court’s ruling in New York Times v. Sullivan (1964), The Washington Post’s mythic role in breaking open Watergate after 1972, various “sunshine” laws, and a vague set of Boomer ideals. The media were to be protected from any kind of government intimidation. Politicians had to understand they were in a rough business. They would be called names. Journalists had a right to go overboard. They even had a right to be wrong, as long as they didn’t do so with a “reckless disregard for the truth.” The penalty for bad reporting would be paid in the currency of reputation.
But the present generation is more preoccupied with “misinformation” and, therefore, more focused on protecting society from the media. Since the First Amendment forbids legislating against press freedoms, the courtroom is the most promising venue for rolling them back. Fox is only the first company to be swept up in this reaction.
The 2020 elections were explosive because of the way three things interacted: the voluble incumbent, an irregular electoral system devised in the wake of Covid, and the shocking closeness of the result. A shift of 80,000 votes in Arizona, Georgia, Nevada, and Wisconsin would have given former President Donald Trump a commanding victory. Vote-counting dragged on for days in all of those states. To a Trump supporter who had seen his candidate surveilled by intelligence agencies before the 2016 election, treated as illegitimate in the news media while in office, and impeached (at that point only once), the election results certainly looked fishy. In this age of ideological polarization, it is easy to pass off as a “fringe conspiracy theory” an idea that a 100 million people might be discussing every night over the dinner table. It may be that the suspicions they expressed were misplaced and that the election was on the up-and-up. But in a free society, trust is produced through the robust and unbullied scrutiny of an opposition press.
Fox, as we know, embraced that responsibility with zeal. One can say in retrospect that the network should have known better than to solicit the opinion of Powell, a woman whose theories sounded batty even at first acquaintance. But that would be glib. Shame and ostracism are powerful tools for keeping reporters in line. It can be a sound journalistic instinct—although it should go without saying that safeguards are needed—to talk to a source just because an interested party describes him as “discredited.” Fox host Tucker Carlson, whose instincts about Powell were consistently sound (which is to say, consistently skeptical), nonetheless said of the general issue of voting-machine integrity: “This is a real issue, no matter who raises it or who tries to dismiss it as a conspiracy theory.” Good—this is old-fashioned journalistic defiance of convention, of the sort that Fox’s loyal audience has come to expect.
And there was another thing: For weeks, Powell was confidante to and spokesperson for a president alleging an unprecedented conspiracy. Whatever one thought of Trump’s allegations, she was newsworthy.
One novelty revealed by the Dominion lawsuit has thus far been little appreciated: namely, that the overlap between public and private power has made criticism of the government vulnerable to counterattack. In the old days, a theory about polling stations might have been accurate or crazy—but polling was a government function and, thus, fair game. Now, an increasing number of government duties are contracted out to private companies that can demand compensation for any reputational damage that might affect their private interests (even if, as is the case with Dominion, their contracts are largely with the government). Presumably, the same vulnerability to litigation can be turned against newspapers that criticize the military strategy of Constellis (formerly Blackwater) or conditions in prisons run by CoreCivic (formerly the Corrections Corporation of America). We often think we use the word “plutocracy” as a metaphor, but in fact, certain prerogatives for public-private entities are being formalized through cases like Dominion v Fox News. If you criticize a government activity run by a private company, the company can retaliate.
After New York Times v Sullivan, news organizations evolved an impressive arsenal of prerogatives and protections—privileges for neutral and fair reporting, a virtually unlimited right to opinion, and an understanding that they could explore repugnant and even false views if they were newsworthy.
The heart of Dominion’s case lay not in what Fox and its employees said, but in the theories Powell and Giuliani spouted during interviews. That’s a new one: The interviewer was held responsible for the statements of the interviewee. In traditional print journalism an interview is usually just raw material—not journalism itself. In broadcasting, the interview is the journalism—except that the journalist, of course, can’t control what the subject says. It could be argued (and was) that a “pre-interview” can turn interviewer and interviewee into collaborators. But conversations are mostly opinion, anyway. Under the old media doctrine, punishing Fox for interviewing Powell and Giuliani would have been well-nigh impossible. Indeed, it would have been undesirable.
Fox ran into some bad luck. Critics of “misinformation” often see the prerogatives of a free press as so many sly tricks. Such critics used to be associated with the political right. In Vietnam, they were often the military brass. No longer. Judge Eric Davis of the Delaware Superior Court turned out to be one of them. In a summary-judgment opinion issued on March 31, he denied Fox the right to defend its reporting on the grounds of “newsworthiness.” It has been said that it is hard to prevail in defamation cases, because it is almost impossible to show that a news organization has been truly reckless. But if there is no privilege for “newsworthiness,” then these cases aren’t hard to win at all. Fox is a news organization. If its news isn’t newsworthy, then almost anything it’s doing is reckless by definition.
Nor could Fox take refuge in the idea that its anchors were free to express opinions. Davis insisted on a bipolar distinction between facts and opinions, such that a question asked by Fox host Maria Bartiromo—
Sidney, I want to ask you about these algorithms and the Dominion software . . . Sidney, we talked about the Dominion software. I know that there were voting irregularities. Tell me about that.
—becomes a “statement of fact,” because Bartiromo used the formulation “I know.” The question thus loses its protection as journalism and is liable to be read as defamation. Bartiromo was certainly among the more credulous Fox reporters, but this is absurdly literal-minded, as if Judge Davis were playing a game of Simon Says.
On any matter of serious political controversy, the difference between a fact and an opinion is precisely what is hardest to determine. Is it a fact or an opinion that CO2 contributes to global warming? If you assert it as a scientist, it is a fact. If you assert it as a non-scientist, it is an opinion about the credibility of scientists. From the outside, that looks like the main reason Fox settled. Burrowing underneath the law, the judge laid down a set of courtroom rules that made Fox culpable by definition.
Those disgusted with Fox may thrill to this approach. Celebration is premature. No newspaper is so anti-Trumpian, no network so woke, that its in-house counsel would not shudder to contemplate the implications of the roadmap Dominion has charted for plaintiffs and Davis for judges.
Participants in Dominion v. Fox suspected it would find its way to the Supreme Court. Some such case eventually will. We have lost the definitions on which freedom of the press has rested for half a century. Until we get new ones, it is to be feared that “reckless disregard for the truth” will mean nothing more than reckless disagreement with prevailing opinion.