Fox News’ $787.5 million settlement signals a new world of defamation and news delivery

The defamation case against Fox News in Delaware Superior Court settled before trial yesterday for $787.5 million dollars. It's believed to be the biggest defamation settlement in our courts and will change the delivery of our news. In the new world of social media and the role of communication - defamation has become lost to the concept of inaccurate and quick news reporting for profits and followings.

Everyone is familiar with the claims made by a number of Fox News people that the last Presidential election was rigged or fixed by certain people and the Dominion voting system. The Dominion v. Fox case may be the most important case of the decade in the way our country delivers news to the public. It could also set a new stage for the law of defamation.

The Dominion v. Fox case could also materially affect the criminal proceedings against former President Donald Trump and his associates presently being investigated by Special Prosecutor Jack Smith by the admission of Fox hosts.

Dominion is a Canadian voting machine company with U.S. headquarters in Denver, Colorado. During the 2020 elections its voting systems, certified by the U.S. Election Assistance Commission (EAC), were used in over 23 states. Those systems include paper ballot backup to verify results. Dominion machines were used in so-called "swing" states, Arizona, Georgia, Michigan, Wisconsin, and several counties in Pennsylvania.

When the votes of the November 2020 election were finally counted, Biden had won with 306 Electoral College votes against Trump's 232. The Electoral College votes of the swing States made the difference. On Nov. 12, the EAC reported that there had been no significant irregularities in the election.

Many of Trump's allies and others met and agreed to challenge the integrity of the Dominion machine votes, alleging that they had been "rigged" to shift thousands of Trump votes to Biden. They asked Republican leaders in the few swing states to meet on Dec. 14 to elect "alternate" slates of Trump electors to challenge the slate of electors who were certified by their respective Governors to vote for Biden.

Trump and his allies anticipated that when the Electoral College votes were to be formally confirmed by the Congress on Jan. 6, 2021, Vice President Pence would send the certified slates and the Trump-created slates back to their state legislatures for "review."

The Trump challenge failed when Pence determined that the Constitution required him to count the votes certified by the states. Pence, who for four years had been loyal to Trump, refused Trump's demand that he not count the ballots of the "swing" States. Trump sent a tweet to his followers that "Mike Pence didn't have the courage to do what should have been done" as reported.

During the period between Nov. 3, 2020, and Jan. 6, 2021, Trump, his supporters and Fox News and their reporters told the American people over broadcast news a number of false claims that the Dominion voting machines had been rigged and had shifted thousands of votes from Trump to Biden.

Participants in these falsehoods were a number of Fox television personalities: Tucker Carlson, host of Fox's Tucker Carlson Tonight; Lou Dobbs, host of Lou Hobbs Tonight; Sean Hannity, host of Hannity, and Jeanine Pierro, host of Justice with Judge Jeanine. Fox hosts repeatedly hosted Trump's attorneys Rudy Giuliani, Sidney Powell, and others in the weeks following the Presidential election. The Fox broadcasts following the election with their false accusations against Dominion reached millions.

As early as Nov. 12, 2020, polls showed that over 80% of Trump voters believed that voting fraud had "stolen" the election from Trump. By January 2021, 64 separate lawsuits were filed by Trump attorneys challenging the election results in the "swing" states. The Judges in all 64 cases, 11 of whom had been appointed by Trump, ruled that the lawsuits were without merit and should be dismissed.

Dominion sent various Emails to Fox reporters and producers of various shows called "Setting the Record Straight" to disprove the false claims. Over and over, Dominion sent letters, made calls, etc., and the messages continued. Dominion spent millions to mitigate the harm and correct the Fox reporters' false claims - which many admitted to be false in private communications and conversations.

Finally, Dominion sued Fox, a Delaware LLC, in March 2021 for defamation in Delaware Superior Court, citing the television broadcasts by Fox which had falsely alleged that the Dominion machines had been responsible for Trump's defeat. The complaint by Dominion contended that Fox intentionally provided a platform for guests that Fox's hosts knew would make false and defamatory statements of fact on the air; Fox, through Fox's hosts affirmed, endorsed, repeated, and agreed with those guest's statements; and Fox republished those defamatory and false statements of fact on the air, Fox's websites, Fox's social media accounts, and Fox's other digital platforms and subscription services. Dominion sought punitive and economic damages for defamation per se in their complaint.

In December 2021, Judge Eric Davis of the Delaware Superior Court wrote a detailed opinion denying a Motion to Dismiss that contained a full explanation of the potential defamation. The Court covered every aspect of the defamation claim and defenses, including the law on privileges of neutral reportage, Fair Report, and the defense of opinion. Under New York law, the Court found none of the defenses applied.

Dominion claimed costs of millions of dollars in as much as Dominion's reputation had been materially endangered, and for weeks Dominion employees were stalked, maligned, and anonymously threatened with harm.

More importantly, the testimony in depositions and under oath by Dominion witnesses, and the admissions by Fox reporters that they knew the truth of the real facts could bring both the Fox employees and the false electors within the definition of co-conspirators to implicate them in seeing to criminally affect the Electoral College count and defraud the people of the United States.

In the settlement yesterday of over $787.5 million, Fox Corporation stated that "We acknowledge the court's ruling finding certain claims about Dominion to be false." The matter settled just before opening statements. Witnesses for Fox were spared having to testify, including Rupert Murdock, Chairman of Fox, and many hosts such as Sean Hannity, Tucker Carlson, Maria Bartiromo, along with attorneys for former President Trump. The defense was very defiant that the statements were shielded by the First Amendment. The issue at trial for the jury was whether the statements were made with "malice." Clearly Fox must have felt the jury would not believe the good faith of the reporting based on many internal documents and statements made by the Fox hosts. This settlement and case is just the beginning of suits to come in the future.

The case was represented by lawyers from Susman Godfrey LLP for Plaintiff Dominion, and Winston & Strawn LLP leading for the Fox defendants. The Dominion v. Fox case will be talked about for many years by the press following in the footsteps of the U.S. Supreme Court decision in New York Times v. Sullivan, which in 1964 held that the First Amendment protects freedom of speech and the rights of public officials to sue the media only for defamatory statements made with "actual malice." Here, Dominion was not a public official, and there was no defense for publishing malicious false material.