What the Fox-Dominion settlement sidesteps

by Nicholas Goldberg

I’m sorry that a settlement was reached in the giant landmark defamation lawsuit brought by Dominion Voting Systems against Fox News. 

I mean, I’m not entirely sorry. It’s nice that Dominion will get compensated for its mistreatment at the hands of the network that claims to be so fair and balanced, and it’s gratifying that Fox has to pay a price — a big, painful, embarrassing $787.5 million — for its utterly irresponsible coverage of Dominion and alleged election fraud. 

The conspiracy theories aired over and over on Fox in the aftermath of the 2020 election were outrageous. Peddled by then-President Donald Trump and his lieutenants Rudolph W. Giuliani and Sidney Powell, the lies mischaracterized Dominion as a front for the left-wing government in Venezuela and asserted falsely that its voting machines were rigged to flip votes from Trump to Joe Biden to guarantee a Democratic victory. 

Give me a break. “The truth matters,” as Dominion’s lawyers said repeatedly — and said again Tuesday on the courthouse steps. “Lies have consequences.”  

I’m also somewhat relieved that the settlement will avoid dragging these issues all the way to the U.S. Supreme Court, where some legal experts were worried that long-standing protections for journalists might be at risk. Instead, the Supreme Court’s 1964 ruling in New York Times v. Sullivan will stay in place for now. That decision allows journalists and news organizations to be punished for defaming public figures only in cases of “actual malice” — that is, if they know the information they publish is false or if they behave with “reckless disregard” for the truth. Sullivan’s survival is good news. 

So why am I sorry?  

Because another part of me was eager to see these important and sensitive issues aired publicly, not hushed up and removed from public view with an exchange of millions of dollars behind closed doors. 

From the start, the part of the case that has interested me most was Fox’s insistence that it was just covering the news, and that when important public figures like the president of the United States and his top aides go public with blockbuster allegations about a rigged election, it is inherently newsworthy and needs to be covered. 

Fox, after all, didn’t make up the allegations; it merely covered them, said the network’s lawyers. 

“The news media has the right in a democracy to inform citizens by reporting and commenting on a president’s allegations challenging the security of our election,” said Fox. “There are two sides to every story. The press must remain free to cover both sides, or there will be a free press no more.”  

That’s what I would’ve liked to have seen hashed out in open court (although the judge apparently didn’t want that to be the focus of the trial). Was Fox just covering the news — or was it a co-conspirator in attempting to deceive the public? Did its on-air journalists behave responsibly, or did they act like credulous partisans?  

In my view, Fox is absolutely correct that news organizations should be allowed to report what Trump and his cronies are saying. But they have an obligation to do so fairly, honestly and in context. 

That means they have to stick to the rules of Journalism 101: They must be even-handed, open-minded and skeptical of unproven assertions. They must distinguish provable facts from mere speculation or unsubstantiated accusation. Fox had a responsibility — even the network’s opinion journalists had a responsibility — to air Dominion’s denials and the demurrals of voting experts. 

It failed those tests. 

Its hosts on a number of occasions repeated the allegations about Dominion as if they were fact. They took sides with Giuliani and Powell. Lou Dobbs asserted that Dominion’s voting machines “were designed to be inaccurate.” He thanked Giuliani for “pursuing what is the truth.” Maria Bartiromo said on the air, falsely, that then-House Speaker Nancy Pelosi “has an interest in this company.” Bartiromo also repeated fraud claims about Dominion “even though she had been specifically notified that independent fact-checkers, government officials and election security experts debunked those lies,” according to Dominion’s brief. 

What’s more, scores of emails divulged during the discovery process showed that Fox News hosts and executives had grave doubts about the veracity of the conspiracy theories they were peddling, yet continued to air them in an effort to boost their ratings and mollify right-wing viewers still angry that the network had called Arizona for Biden on election night. 

Sure, there were a few occasions in which Fox noted Dominion’s denials or evinced some skepticism. It invited Dominion at least once to come on the network to dispute the allegations. 

But those were exceptions — and insufficient. 

In my view, the country needs strong legal protections to ensure journalists can do their jobs. 

But Fox News abused those protections. 

Nicholas Goldberg is an associate editor and op-ed columnist for the Los Angeles Times.