We are pleased to have reached a settlement of our dispute with Dominion Voting Systems. We acknowledge the Court’s rulings finding certain claims about Dominion to be false. This settlement reflects FOX’s continued commitment to the highest journalistic standards. We are hopeful that our decision to resolve this dispute with Dominion amicably, instead of the acrimony of a divisive trial, allows the country to move forward from these issues.
Gag.
And with that it’s over, and in a way, the miserable bastards skate again. Yeah, it’s a great big cheque, but they can afford it. From what I’m seeing, they’re reporting $U.S. four billion in cash on hand on their balance sheet, and there’s plenty more money where that came from. Meanwhile, no huge comeuppance for Rupert. No weeks of grilling the whole filthy bunch on the stand. No weeks and months of negative headlines. No public retractions. No public eating of shit by Sean, Tucker and Laura on air. Not even a quick hey, we lied, O.K.?, get over it. Nope. They simply acknowledge that the Court made certain findings about certain things, as one might, for example, acknowledge that the guy next door keeps saying your fence lies on his side of the lot line, crazy bastard, but what are you gonna do, right? Then, just a cheque. Cost of doing business.
Are you bitter? I’m bitter. Irrationally so. We all wanted more, but the thing is, more was never really on the table. Perhaps foolishly, we were all hoping that a private law suit would deliver something akin to public policy, and justice for society at large, rather than merely compensation for individual harm, and that’s just not how civil litigation works, not in the U.S., and not here either. A private law suit aims solely to squeeze money out of the ne’re do well that did you wrong, ideally enough to make you whole, sometimes (though rarely) enough to make them think twice about ever doing it again to anybody else – the latter being the purpose of “punitive damages”, a civil law anomaly that seeks to punish rather than simply compensate – but it’s up to the parties whether they settle, and in most cases a settlement is eminently sensible for all concerned. From where Dominion sits, a cheque today for close to 800 million is far superior to the mere possibility of a bigger payout sometime later (and by “sometime” we mean five to ten years, depending on the breaks), supposing first that you win at trial, which is never a guarantee, even when the evidence seems to leave no other possibility. Maybe there’s a couple of MAGA cultists on the jury that the selection process didn’t weed out. Juries are risky. Maybe (probably?) there’s a couple of MAGA cultists sitting on the bench of the appeal court, who’ll knock down the award. Appeal courts are risky. There’s certainly a whole bunch of sour, ruthless, unprincipled MAGA cultists on the Supreme Court, where a case like this would surely land (with the attendant risk that Thomas, Alito et al would rewrite libel law in favour of the lying liars, pruning away the “actual malice” doctrine). The Supreme Court isn’t just risky; these days, it’s close to a foregone conclusion that they’re coming down on the side of darkness and evil.
So everything augurs against carrying on litigation when there’s that kind of money on the table today, no muss, no further fuss. Indeed, weighing the present value of 800 million against an unknown outcome years down the road, Dominion’s lawyers would have been negligent if they hadn’t told their clients to take the cash and go home happy, and remember, Dominion itself is a profit-seeking corporation whose directors have fiduciary responsibilities to its investors, which also changes the calculus when it comes to risk-taking.
Fox and friends aren’t quite out of the woods yet, mind you. Smartmatic, another voting machine company, is coming at them next. Fox’s own shareholders are suing them. Newsmax and OANN are still going to get their nights in the barrel. There are also suits pending against the nut bar troika of Rudy Giuliani. Sidney Powell, and Mike Lindell (the pillow guy), so there’s still the possibility of some schadenfreude on that front. But none of that is satisfactory, really.
O.K., but there’s still the laudable deterrent value, no? Surely losing 800 million has a certain sobering effect? Yes…but. In the aftermath, a few pundits have latched on to this possible consolation prize, saying that at least the settlement puts some sort of guardrails around the 2024 election, and more or less assures, at a minimum, that Fox won’t be selling another “stolen election” narrative next time around. This, sadly, is utterly wrong. Fox wasn’t being sued for claiming the election was stolen. They were being sued for claiming, falsely and with malice, that they knew exactly who stole it, and for pointing the finger at a specific private concern. That’s defamation, and that’s actionable. Now, though, they know what to do to avoid a repeat of the current unpleasantness. They have a blueprint: simply don’t go after any specific individuals who might then have a cause of action. Instead, they can blame it on the “deep state”. They can cite vague evidence about nebulous foreign actors, not sure who, but something sure smells fishy. They can just ask questions, and wonder aloud whether the ballots were secure, whether millions of dead folk hadn’t somehow voted, whether the outcome wasn’t suspiciously similar to what this or that ill-defined but passionately despised group, say “radical socialists”, or “anti-capitalist ANTIFA-supporters”, would have wanted. All they have to do to keep using the old playbook is avoid giving air time to moon bats who’ll say they can prove it was Disney, and their evil CEO Bob Iger, who deliberately rigged the outcome – or even better, let the moon bats on, but conclude each segment by saying “of course these allegations are unproven, and Fox News is in no position to confirm them” – and they’re safe as milk. They can, indeed, continue just asking questions about the 2020 election, so long as they keep it nice and non-specific. No identifiable damage to any particular private entity. No harm, no foul.
Does anybody doubt that’s just exactly what they’re going to do?
My initial, visceral reaction was that what’s sadly missing is some sort of statutory regime that would allow the FCC, or Justice, to prove the very same thing in court that Dominion was about to prove, that Fox wasn’t just slathering horse shit all over the body politic, it was doing it deliberately, knowingly, and maliciously, and then pull their broadcast licence. Sounds good, right?
Actually, I’m only assuming on general principles no such law exists, but here’s what we need to think about: if it did, it would be immediately challengeable on First Amendment grounds, which, unlike when only private litigants are involved, would certainly come into play. Aye, and there’s the rub. If you defame me personally in America, I can sue. There are still First Amendment arguments (it’s complex, of course), but if you say something specific about me, something that can be proved false, the law gives me certain rights, subject to various limits. If, on the other hand, you defame all of society, and the institutions it contains, undermining public confidence in all organs of government and democracy itself, you’re exercising the freedom of the press, and in general the government can’t do a damned thing about it. If they ever tried, it wouldn’t just be MAGA extremists who’d scream and run to the rescue, it’d be the ACLU, and, well, there’s a reason for that.
Case in point: just a couple of weeks back, the ACLU won a judgment in Federal Court to strike down a Puerto Rican law that attempted to make it illegal to knowingly spread falsehoods during publicly declared states of emergency – essentially, a law against making everything worse at the worst possible time by maliciously spreading misinformation and conspiracy theories. On the face of it, that seems like a pretty sensible thing, yes? Well, no, actually. Can’t do that, said the Court. The government can use its own channels of communication to refute the dangerous lies. It can’t put a cork in the liar’s mouth.
On balance this is a good thing, isn’t it? As the ACLU argued, “the law violated the First Amendment because its broad sweep created a danger of partisan abuse or selective enforcement, enabling the government to suppress or chill speech that contradicts its official narrative…The law threatened to chill reporting on the COVID-19 crisis and other emergencies, because journalists risked prosecution if the government disputed the accuracy of their reporting.”
You see the problem. Today, it might be Rupert Murdoch and his merry band of despicable bullshit artists. Next time around, with a Republican in charge of the Justice Department – some nefarious prick like Bill Barr, say – it might be the Washington Post pointing to evidence that the Russians rigged the election. Or the New York Times for insisting that vaccines are safe. Which, yikes. Yes, that’s a pain in the large muscle groups under present circumstances. Thinking like an old school Canadian, one can’t help but wish that there might be an acceptable compromise, perhaps in allowing the suppression of speech only when the actual malice could be proved in a court of law, rather than determined by administrative fiat. Something somewhat middle-of-the-road, and non-absolutist. Yet we can all, I think, agree that dangers would remain, probably unacceptable dangers.
Anyway, The U.S. isn’t Canada. Their Bill of Rights doesn’t have an equivalent to our Charter’s Section 1, which makes all of its enumerated rights and liberties subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (which might allow them to rein in some of their Second Amendment craziness, with a better SCOTUS). Actually, I don’t have a clue how the scenario would play out here, either, even given our Section 1. Under our Broadcasting Act, the Canadian Radio and Television Commission has broad authority to regulate what TV outlets do and what they put on the air, including the power to revoke or suspend any broadcast licence, and I don’t know, maybe yanking the licence for an unequivocally bad actor like Fox just for lying all the time, could, in theory at least, pass constitutional muster here, if the relevant authority was framed with appropriate limits and safeguards. The Court’s Section 1 analysis would certainly be rigorous, under long-established criteria by which the balance of harm and good to society would be carefully weighed. Maybe there’s already jurisprudence out there on the matter, and I know for a fact that we do ban overt hate speech based on race, gender, and so on. Beyond that, it beats me. I never had cause to look into it during my years as a corporate lawyer. How would I know?
Oops. Crap. I just realized that I’ve given myself yet another legal research problem, and I’m not going down that road. No, no, nossir, not taking that route again. I’m done with law. Thirty years was enough.
It doesn’t matter anyway. The point is, would we be comfortable with a government that had the authority to squelch what it considered the dissemination of deliberate lies, even if it had to prove the malicious lying in court? Wouldn’t that be one of those proverbial slippery slopes? Isn’t it better for American society, and ours too, on balance, that nobody can kick the likes of Tucker Carlson off the air just because he’s a miserable lying miscreant? Who says he is? Who do we trust to say so?
I get all that. I do. What it means, though, is Rupert cuts a cheque, keeps on with his malfeasance, albeit slightly tweaked, says nothing to his own audience or anybody else about having been proved to be a dangerous, antisocial liar, and it’s on to the next broadcast. By all means, Tucker, keep spreading the bullshit, just be a little more careful on the specifics, OK buddy? They should burn, all of them. They won’t. They’re laughing at us.
The lawyers for Dominion, speaking at a press conference yesterday, said money is accountability. It isn’t. Not really. Not the kind we need, anyway, because that’s not what private litigation can deliver. Everything’s complicated. Nothing’s satisfying. Such is life.
Further reading on defamation and the First Amendment, if you’re keen:
https://www.alllaw.com/articles/nolo/civil-litigation/defamation-character-free-speech.html
the needlefish 