No Regrets

Join me on an emotional journey.

The journey we’re about to take is brief, having played out on Tuesday afternoon in little more than an hour. But the emotional ground it covers is vast.

Shortly before 4 p.m. ET: A Delaware judge stuns reporters packed into his courtroom by announcing that the defamation trial of Dominion Voting Systems v. Fox News has been canceled. After two years of legal jousting, with opening arguments at last set to begin, “the parties have resolved their case,” he declares.

Despair.

There will be no parade of Fox News personnel forced to testify about the network’s grand deception following the 2020 election. Rupert Murdoch, Tucker Carlson, Sean Hannity, Fox executives—none will be made to admit under oath that the network misled viewers repeatedly about the merits of Donald Trump’s claim that the presidency had been stolen from him.

This is as close as we’ll ever get.

In America (and more so everywhere else), to be rich is to be largely unaccountable for one’s corruption. We all know it, but it’s one thing to know it and another to have to choke it down in a matter in which one is morally invested.

Shortly before 4:20 p.m. ET: Dominion’s lawyers reveal the amount of the settlement. Fox will pay $787.5 million.

Joy.

That’s “the largest publicly known defamation settlement in U.S. history involving a media company,” CNN reports. It’s in the ballpark of the $965 million Alex Jones was ordered to pay for defaming relatives of the children murdered in the Sandy Hook massacre, placing Fox in the distinguished company of America’s most notorious conspiracy crank in the scale of its misconduct.

And unlike Jones, Fox’s check will clear.

It’s difficult by design in this country to slander a public figure, let alone to slander them so horrifically that you might plausibly owe them 10 digits following a trial. Fox’s willingness to pay a settlement approaching that amount operates like an admission that it erred to an historically egregious degree. There’s some accountability in that, as one of Dominion’s lawyers acknowledged.

Shortly after 5 p.m. ET: Reports trickle out that Fox won’t be required to admit to having lied about the election or to publicly apologize to Dominion.

Rage.

For those who hoped to see Fox employees testify at trial, the only consolation in a settlement was the prospect of network hosts being forced to read groveling confessions of wrongdoing on air as part of the terms. Finally, the unreality bubble surrounding the 2020 election would be punctured; Fox viewers would be made to reckon with Tucker and Sean admitting that the voting machines weren’t rigged, that Dominion was blameless in Trump’s defeat, that Trump was, in fact, defeated.

And even if that information failed to persuade them, the ritual humiliation of making theatrically pugnacious Fox personalities sound contrite about their own smears for once would be gratifying.

It won’t happen. They aren’t contrite, and Dominion didn’t insist that they pretend to be. There will be no moral accountability.

Around 5:30 p.m. ET: Disappointed critics are reminded that Dominion’s lawsuit is only the first bite of the apple.

Hope.

Smartmatic’s lawsuit might end the same disappointing way that Dominion’s did, but it portends more embarrassing revelations in pretrial filings and more financial damage to Fox and its parent companies in the end. Perhaps the next settlement will require a teary Tucker to tell viewers that they shouldn’t take seriously anything he or anyone else on the network says on air.

Or perhaps Smartmatic will proceed to trial, win, and take Fox to the cleaners.

If not, there’s still the small matter of resolving derivative suits filed by the network’s own shareholders alleging that executives breached their fiduciary duties. “The Board’s decision to chase viewers by promoting the false stolen election claims has exposed the Company to public ridicule and negatively impacted the credibility of Fox News as a media organization that is supposed to accurately report newsworthy events,” one suit claimed last week.

Fox probably isn’t done cutting checks. Know hope.

Shortly after 5:30 p.m. ET: It dawns on me that Fox probably has no regrets about how all of this played out, and to the extent that it does, it regrets that it didn’t behave worse than it did.

Cynicism.

It was always going to end with cynicism, wasn’t it?

Let’s explore this one in detail.

If Fox had any sincere regrets about how it covered the post-election period, yesterday offered numerous opportunities to say so. The fact that Dominion didn’t insist on an apology obviously doesn’t bar the network from issuing one on the occasion of the parties resolving their lawsuit.

Fox didn’t apologize. It barely acknowledged what had happened.

Neil Cavuto mentioned the settlement on his show. Special Report touched on it but neglected to include the dollar amount, presumably to prevent Fox’s viewers from drawing any inferences about culpability from the size of the payout. The highly rated primetime hosts said not a word on the subject across three hours. Neither did another popular show, The Five.

Fox’s statement on the settlement was written with lawyerly precision to avoid admitting fault. “We acknowledge the Court’s rulings finding certain claims about Dominion to be false” is as far as it went before adding, absurdly and all but mockingly, “This settlement reflects Fox’s continued commitment to the highest journalistic standards.” 

As of Wednesday morning, the only coverage on Fox News’ website was a brief report highlighting the network’s own statement and the judge’s compliments for the lawyers on both sides. The amount of the settlement was, again, conspicuously omitted.

That Fox would strain so mightily to ignore and obscure the truth in its own coverage proves the point of the settlement, ironically: It’s a propaganda outlet, not a news network. Given a choice between fully informing its viewers about a newsworthy matter and protecting its own corporate or political interests, there was never a question about which it would choose.

That’s why I think it has almost no regrets about how it covered the post-election period. (Or, as Fox’s online report awkwardly phrased it, “the post-2020 presidential election.”)

It has a few, I assume. For instance, the next time Fox management and hosts conspire to lie to viewers for ratings, they won’t put so much of the conspiracy in writing—or not in writing that doesn’t disappear into the ether, at least. Only in a culture of remarkable impunity would employees platform figures like Sidney Powell to defame others with wild conspiracy theories while disparaging those figures privately in discoverable communications like text messages.

Fox personnel were too transparent in their corruption. They’ll do better in the future.

I suspect management also wishes it had pushed harder and earlier for a settlement with Dominion, as that might have shaved a few hundred mil off the tab and kept those text messages out of the public eye. And it probably regrets not firing Lou Dobbs before the 2020 election rather than afterward, as Dobbs ended up one of the most febrile and credulous Dominion antagonists on the company’s airwaves.

Most of all, Fox must deeply regret the early (and correct, if questionable) call of Arizona for Joe Biden on Election Night 2020. That appears to have been the catalyst for the company’s decision to promote election conspiracy theorists in the weeks following. Fox’s pro-Trump viewers were furious at the call; they began tuning into the more conspiratorial Newsmax in protest; fearing a ratings collapse, Fox management sought to appease them by putting cranks like Powell and Rudy Giuliani on the air.

Hypothetically, had Fox declined to call Arizona for Biden, it would have retained the audience’s goodwill and therefore had more leeway to level with them about whether the election was truly rigged.

Hypothetically. But I have a hard time believing it would have played out that way.

After all, if Fox hadn’t alienated Trump diehards with its call of Arizona, it would have alienated them by reporting that there was no evidence of election fraud while every other right-wing outlet in America was busy insisting otherwise, Newsmax included. The intractable problem with conservative media is that you’re forever one litmus test away from losing your audience, however much credibility with the American right you think you might have built over the years. With Trump inflaming the subject relentlessly at the time, whether the 2020 election was or wasn’t stolen became the most important litmus test any right-wing outlet will likely ever need to pass.

Fox couldn’t have risked failing it. Given the choice of promoting conspiracy theorists, retaining its pride of place on the right, and paying Dominion $787 million on the one hand, and on the other hand telling the unpleasant truth and watching its audience stampede toward upstart propaganda outlets like Newsmax, there’s no doubt they would have chosen the path they did.

What’s $787 million to Fox anyway? At the end of last year, the Fox Corporation had more than $4 billion in cash on hand. It earned revenue exceeding $4.6 billion in the last three months of 2022 alone. The company might also have libel insurance to help defray the cost of making Dominion go away. Is three-quarters of a billion dollars worth it to maintain a quasi-monopoly over conservative TV news? Sure it is.

Think of it as the company paying a “sleaze tax,” a type of fine incurred when a media outlet trades ethics for ratings. Rupert Murdoch has paid that tax many times before, writes Jack Shafer at Politico.

Murdoch’s company paid $100 million to celebrities and crime victims in his tabloid phone-hacking scandal in Britain, according to the Washington Post. Another $50 million went one year to women at Fox News who alleged sexual harassment at the conservative network. In another case, $15 million went to a former host who complained about wage discrimination. A “seven-figure payment” went to the parents of Seth Rich, who sued Fox for trafficking a false conspiracy theory about his death. And in 2010, Fox dropped a mammoth $500 million to settle a supermarket-coupon trade secret lawsuit. In 2011, Murdoch completely shuttered his News of the World tabloid to limit exposure in the phone-hacking scandal.

Recently Semafor asked media mogul Barry Diller what he thought of Dominion potentially recovering huge damages from Fox. “So what? They’ll pay it,” Diller replied. “What is it going to do? Is it going to worsen Rupert Murdoch’s reputation? I mean, good luck to you.”

“So what? We’ll pay it” is precisely what Fox management would have said in December 2020 if you had told them that smearing Dominion was the only way to keep the network number one in cable news, I suspect. Fox News didn’t get to be Fox News by having a conscience. No regrets.

In fact, if Dominion’s lawsuits against Newsmax and One America News Network succeed as spectacularly as the suit that settled yesterday did, Fox could find its few minor competitors in right-wing cable news soon bankrupted into oblivion. Dominion, ironically, might end up inadvertently boosting the network’s market share.

As despair turns to joy turns to rage turns to hope turns to cynicism and, finally, to cool contemplation, a few truths reveal themselves. Some are even optimistic.

One: As others have noted, in ways tangible and intangible, Trump’s “Stop the Steal” campaign must now be one of the most expensive lies in American history. Setting aside yesterday’s nine-digit defamation payout to Dominion and the other settlements yet to come, it cost the GOP a Senate majority in 2021, likely several governorships in 2022, and may end up costing them the presidency in 2024. Without that Senate majority, Democrats wouldn’t have been able to pass spending mega-bills like the American Rescue Plan or the Inflation Reduction Act. Conservatives will be paying for Trump’s smears, literally and figuratively, for decades.

Two: Fox in particular will continue to pay for its misdeeds, and not just with settlements for plaintiffs like Smartmatic. It’s destined to lose some cachet among populists for compromising with Dominion, especially once Trump begins lashing them for doing so. His last bit of free legal advice to the network before it chose to settle was, ah, not great. There’s more where that came from.

Fox will also face awkward moments when trying to navigate Trump’s conspiratorial insanity during the coming campaign, especially if he’s the nominee. Eventually he’ll insist that the 2020 election was stolen during an interview with some Fox host. Will the host correct him, annoying viewers? Or will the host play along, annoying potential plaintiffs?

Fox being Fox, my guess is that the new policy will be that it’s fine to wink at “rigged election” conspiracy theories provided that no specific culprit, like Dominion, is named. Civically destructive propaganda is fine just as long as it’s vague enough not to be actionable.

Three: Conservative media will need to be somewhat more careful about the scale of the lies it tells going forward.

Had Fox prevailed at trial, every crank with a keyboard in this country would have concluded that the Sullivan standard for defamation is effectively insurmountable by public figures. It would have been open season for wild-eyed populist propaganda. As it is, precious few conspiracy theorists can afford to cough up $787 million to indulge in their favorite hobby.

These people don’t learn lessons easily but they might find themselves forced to learn this one.

Four: We should never lose sight of the fact that right-wing media’s malefactors behave as they do because their audience wants them to do so.

When a consumer of conservative media says they “trust” a particular outlet, they usually don’t mean that they’ve made a considered judgment about the integrity of the outlet’s news coverage and deemed it to be evenhanded. They mean that that outlet trafficks exclusively and reliably in information that affirms their political worldview. It’s a safe space, to borrow Jonah Goldberg’s analogy. 

We can fantasize about virtuous actors at Fox News dutifully informing their audience in November 2020 that the election wasn’t stolen, but that scenario realistically doesn’t end with the scales falling from the eyes of Fox viewers. It ends with those viewers turning in unison to Newsmax. Had Fox abandoned its gatekeeping duties at a moment as fraught as the post-election period, the “trust” its viewers had in it would have been shattered utterly. And Fox knew it, which is why it behaved toward Dominion as it did.

Blame Fox, by all means, for having conditioned conservatives over decades to equate propaganda with “truth.” But once that monster was built, there was no way feasibly to reason with it about something as emotionally charged as “Stop the Steal.” “Fox viewers believe only what they want to believe and … persuasion is impossible. That’s the view Fox takes of its own audience,” Jonathan Last writes today. “And just going by the ratings, it seems to be objectively correct.”

And that’s why, I suspect, Dominion ultimately didn’t insist on a formal apology or admission of fault. What good would it have done? If watching Tucker Carlson or Sean Hannity confess to defamation might have changed Fox viewers’ minds about the election, it would have been a worthwhile sticking point in settlement negotiations. But they wouldn’t have changed their minds; they would have changed the channel. Fox would have lost its lucrative reputation as a safe space without successfully restoring Dominion’s reputation as a manufacturer of trustworthy voting machines.

In the end, Fox couldn’t offer its victim redemption and likely would have resisted providing it if it could. All it had to offer was a gigantic pile of money. It’ll have to do.