Why a record-shattering settlement still might not change Fox News

Dominion is walking away with $787 million. That might not be enough to deter Fox News.

Fox’s $787 million settlement with Dominion Voting Systems over its 2020 election lies is the biggest media defamation settlement in history. But it’s unclear whether it will change the way Fox News, or the media more broadly, operates.

While there won’t be binding court precedent on what guidelines news and opinion outlets have to follow when it comes to the truth, the settlement shows that spreading lies isn’t without consequences for media organizations. As Dominion attorney Justin Nelson said Tuesday, the settlement represents “accountability.”

For an organization as large as Fox, the settlement amount, which was about half what Dominion sought, isn’t an existential threat. And given that the network can rely on the loyalty of its conservative audience and that it didn’t have to admit to its lies on air as part of the settlement, it may well continue to entertain conspiracies about a stolen 2020 election and other right-wing disinformation. That might be up to the Murdoch family, which controls Fox and its parent company, setting it apart from other media organizations.

The same settlement amount could have brought other news organizations to their knees. But most won’t have reason to fear that they could be next. The circumstances of the Fox suit are somewhat exceptional. And many legal experts agree that the network’s actions exceeded the very high legal threshold of “actual malice” — that it made a false statement “with knowledge that it was false or with reckless disregard of whether it was false or not,” as established by the 1964 Supreme Court decision in New York Times v. Sullivan. It would be difficult to meet that threshold if abiding by the most basic journalistic standards, as most outlets tend to do.

We asked media and First Amendment experts what they think the impact of the settlement will be. Most believed that the payment won’t change Fox’s behavior or have any sweeping impact on the news industry more broadly. Here’s what they said:

Will the settlement discourage disinformation at Fox and other media organizations?

Katie Fallow, senior counsel at the Knight First Amendment Institute:

“I do think that this large settlement amount will have a positive effect in terms of deterring Fox News going forward from uncritically airing claims that it knows to be false or entertains serious doubts about whether they’re true. It’s one of the largest settlements in a defamation case that I’ve heard of — the next largest being the settlement that ABC and Disney paid in the case known as the ‘pink slime case.’

That said, Fox News is extremely profitable. ... [The settlement is] not going to, nor should it wreck the company. One of the things that the evidence disclosed in the litigation is that Fox also feels motivated to make sure that it is not alienating its audience. And I think it’s unclear how those two forces will play out against each other.”

Barbara McQuade, professor at the University of Michigan Law School and author of the forthcoming book, Attack From Within: How Disinformation Is Sabotaging American Democracy and the Rule of Law:

“While Fox paid a large sum of money, its public statement showed no trace of remorse. Fox may view this settlement as simply a cost of doing business. The documents released during discovery indicate that Fox was willing to air false claims because they were good for ratings. If lies are good for business, then this settlement may serve as no deterrent to continuing to broadcast lies that fit the preferred narrative of their viewers.”

Jon Allsop, author of the Columbia Journalism Review’s daily newsletter, The Media Today:

“I think the broader problem of generalized mis- and disinformation is not something that we’re going to fix through libel law.

Defamation law deals with specific claims against entities or people who have standing to sue. So in this case, Fox News guests and hosts made specific actionable claims about Dominion software, and so Dominion was able to sue for those. But the big lie that the election is stolen is not really a specific claim. It’s just a huge falsehood, but there’s no one person who you’re defaming by saying that.

I think a lot of the disinformation problem that we have is rooted in these big claims. Now, those big claims are made up very often of small, granular, specific conspiracy theories, and to the extent that this can deter those, that’s good. But it’s not really a silver bullet.”

Will the settlement have a chilling effect on legitimate journalism?

Angelo Carusone, president of the watchdog organization Media Matters for America:

“This was a pretty extreme case. This was a two-month deception campaign, with thousands of communications about it. It’s so distinct that it doesn’t actually recalibrate people’s expectations about what would actually get them in trouble. In terms of the output — what we see in reporting — I don’t think this is going to have a big chilling effect. One of the things that sort of came out of all this was that it was clear that Fox didn’t have standards. Most newsrooms don’t operate that way — they have guidelines, they have best practices.

But that said, I don’t want to diminish the internal communications part of this. It could create some new protocols about what is communicated and who it gets communicated to, especially when it comes to some of these decisions on thornier stuff.”

Fallow:

“I certainly am concerned in general when any news organization is sued by a public figure or a public official. The news outlet should be protected by the constitutional actual malice standard. And that’s extremely important, as the Supreme Court recognized nearly 60 years ago, because it matters to our democracy and to free speech that the press and other individuals are allowed to criticize powerful figures without facing crippling lawsuits.

In this case, however, everybody agreed that the heightened and very rigorous standard of proof of actual malice did apply. Numerous other First Amendment advocates who believe in very strong protections for the press said that a lot of evidence appeared to actually cross that threshold.”

Allsop:

“The dollar amount is a huge chilling effect. And media companies, especially in a very bad media economy, are going to look at that and think, ‘Let’s not fall afoul of that.’ But it was also kind of an exceptional case in some ways. I think most media lawyers that I’ve seen would agree that Dominion had, through discovery, gone a very long way to proving something that is often very difficult to prove.”