Sometimes legal cases provide windows into the most important political, economic, and cultural issues of our time. Dominion Voting Systems' billion-dollar defamation suit against Fox is one such case.
On Friday, the Delaware judge who is hearing the case gave the green light for the suit to move forward, rejecting Fox's summary judgment motion seeking to toss it out. That marked a turning point in what is already an historic case.
"The evidence [makes it] CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true," Superior Court Judge Eric Davis wrote in his opinion. To establish Fox's liability under the landmark 1964 Supreme Court case of New York Times v. Sullivan, Dominion must convince a jury that those statements were false, and also that Fox either knew they were false or was reckless in avoiding the truth.
Let's step back and look at what this litigation tells us about the economic system in which our democracy operates. We are seeing what can happen when the corporate profit motive is unmodulated, particularly in a powerful industry: It can corrupt our democracy. But there are tools to protect it.
Our capitalist system produces wealth like none other in history. The profit motive brings enormous benefits as a generator of creativity and innovation, but it also leads to excesses of the kind being revealed in the remarkable case that Dominion has brought.
In one sense, Fox News has simply done what other business enterprises do: A corporation's priority is to grow its profits and stock value to benefit its shareholders. News organizations do that by expanding their audience to create demand for advertising, the source of their revenue. The bigger the audience, the more advertisers will pay and the greater the earnings.
The Dominion case illustrates how our economic system works: When the corporate profit motive is unmodulated, it can corrupt our democracy.
In the ultra-competitive media business, pleasing the viewers is a life and death proposition. In the news media business, that can mean reporting and expressing opinions in ways that confirm the audience's view of the world. Fox has always catered to viewers on the right.
Of course, one must also acknowledge that outlets like MSNBC, with a more progressive audience, offer viewpoints more toward the left. But neither MSNBC nor CNN has ever been sued for defamation in any case with sufficient merit to survive judicial scrutiny, as Dominion's against Fox evidently does.
In Dominion's evidence to date, we see how powerfully the business motives of Fox led to the broadcast of lies that delighted their audience so the network could maintain and build its profits even at the expense of truth.
For example, evidence has shown that Fox News CEO Suzanne Scott said that fact-checking was "bad for business." In the same vein, Fox editor Bryan Boughton reportedly called and castigated White House correspondent Kristen Fisher after she fact-checked a pro-Trump press conference by Rudy Giuliani and Sidney Powell. He told her that she "needed to do a better job of 'respecting our audience.'"
If that weren't enough, top-rated Fox News host Tucker Carlson apparently solicited fellow host Sean Hannity to get news reporter Jacqui Heinrich "fired," after she fact checked a Trump tweet. "It needs to stop immediately, like tonight. It's measurably hurting the company," Carlson texted Hannity. "The stock price is down."
All of which was aptly summarized by Fox News' Washington managing editor Bill Sammon in a message to political editor Chris Stirewalt: "It's remarkable how weak ratings make good journalists do bad things."
In other words, truth be damned — just give the people what they want. As a result, Fox hosts constantly reinforced Trump's Big Lie that the 2020 presidential election had been stolen.
And so a vicious cycle kicked in: Squelch the facts that turn off the audience and elevate the lies that reinforce their belief in a political conspiracy. No matter that the effect is to undermine the legitimacy of elections and the U.S. government. It's little wonder that some Fox News hosts openly admire Russian President Vladimir Putin.
Indeed, the testimony from Fox witnesses so far raises a question: Just how different is the network, its private ownership aside, from the Russian government's RT or Pravda of the Soviet era, or from the daily propaganda broadcast by Joseph Goebbels? Hannah Arendt wrote in her 1951 classic "The Origins of Totalitarianism" that the constant lies on which authoritarianism depends are aimed at destroying the public's will to resist, and do so by eroding "the sense by which we take our bearings in the real world."
Propaganda, Arendt wrote, operates on the belief that once people are made to substitute fantasy for truth, "instead of deserting the leaders who had lied to them, they would protest that they had known all along that the statement was a lie and would admire the leaders for their superior tactical cleverness."
In this, Fox News and Trump built a treacherous and destructive alliance.
While Russia's RT operates in a different economic system from Fox, the latter finds itself in the same place, with political lies as its mainstay. In a capitalist system, the antidote to such media betrayal of democracy is to protect the public through thoughtful, vigorous regulation.
Of course, the First Amendment imposes serious limitations upon the government's authority to regulate news organizations. For decades, however, America had the FCC's "fairness doctrine." The Reagan administration ended it in 1987, notwithstanding a Supreme Court ruling that had upheld its constitutionality two decades earlier. The doctrine required networks to allow time for opposing views to be expressed.
In other words, it did not permit one-sided political opinion to air unchallenged, including outright lies of the kind Dominion has exposed at Fox. This case underscores how important restoring some version of the fairness doctrine, and extending it to cable outlets, would be. This should be the first step in a regulatory program adapted to and appropriate for the 21st-century ecosystem..
The larger point, however, is this: The Dominion case illustrates the dangerous corruption of Fox News, but this lawsuit alone is not nearly enough to protect us from propaganda masquerading as news. The American people need to demand more. We need a carefully regulated media to ensure that our democracy is fair and balanced.
