As opening arguments neared on Tuesday afternoon, even the most hardened skeptics might have found themselves thinking the impossible was actually going to happen: the corrosive lies of Fox News would go on trial, Rupert Murdoch would be forced to the witness stand, and positive societal change might result.
American democracy, which has been teetering on the brink in recent years – would be pulled back from the precipice, at least by a few crucial feet.
After all, the jury of six men and six women had been seated in Dominion Voting System’s defamation suit against Fox News.
The judge had delivered his warnings to stay away from news reports as they heard arguments and testimony. And hundreds of reporters had packed a Wilmington, Delaware, courtroom and its overflow room, ready to settle in for the next six weeks of juicy revelations.
Then the hammer fell with a sudden announcement that the sides had agreed to settle, something that had seemed almost inevitable from the start.
Yes, the amount was a huge one – $787.5m – but it still felt like a below-the-belt blow to those of us who care about truthful reporting and the role of a responsible press in American society.
Dominion’s lawyers – who, after all, work for a for-profit company whose majority owner is a private-equity firm based in New York – tried to spin it their way.
“Money is accountability,” one said. “Today represents a ringing endorsement for truth.” Funny how much that ringing must sound uncannily like a cash register for a company whose 2022 revenue had been projected at roughly $98m. The settlement is nearly eight times that amount.
As a longtime critic of Fox, and as someone who cares deeply about the role of a truth-telling media in our democracy, I wanted to see the case proceed. But I’m not surprised that it didn’t. And I never thought that even a verdict for the full damages of $1.6bn would put the hugely profitable cable network out of business or make any lasting difference in how it functions.
And, after all, as one first amendment expert, the author and University of Tennessee professor Stuart Brotman told me on Tuesday, “the reputational damage [to Fox] was already done”. The pre-trial filings – panicky emails and text messages from executives and hosts about going too heavy with the truth about the election – demonstrated that Fox’s highest priority was keeping its Trump-loving audience happy, not communicating the inconvenient facts about Joe Biden’s election.
Brotman also notes that a trial was risky. We live in a political universe that defies gravity, and it’s hard to say what would have resulted. After all, Trump was arraigned on felony charges and his poll numbers went up. Impeachment meant more successful fundraising. And Fox News on trial might well further endear the network to its dedicated audience who don’t get outside their information bubble much.
What’s more, juries are notoriously unpredictable. Anything can happen, which is why settlement – however painful – is so often the outcome.
“Losing a lot of money hurts,” Brotman noted, especially so when a second, somewhat similar trial is coming up on Dominion’s heels – the one filed by Smartmatic USA scheduled to be tried soon in New York. (Smartmatic seeks even more money than Dominion – $2.7bn in damages, claiming that Fox News hurt the company’s reputation by lying about how its technology was used in the 2020 election.)
The only thing that could make a real difference in Fox’s fortunes is something very far away from a Delaware courtroom. That’s a consumer-driven change in the way big cable providers pay the “carriage fees” that are the main source of Fox’s revenue. The liberal media watchdog group Media Matters for America is working to make that happen, but it will be an uphill climb.
Meanwhile, nothing has changed. The public’s memory is short. There will be no apology required as part of the settlement, pointless as that would have been. Fox is already back to bragging about their “continued commitment to the highest journalistic standards”, which would be funny if it weren’t so tragic.
If Dominion really cared about serving the public’s interest, they wouldn’t have settled this case without at least the symbol of a required on-air apology.
But the huge price tag – maybe the biggest ever in a defamation case – and the appalling findings from the pre-trial filings provide at least some measure of accountability.
They are, after all, those interesting things we call facts. And we can’t un-know them.
Margaret Sullivan is a Guardian US columnist writing on media, politics and culture
