Should Fox News have apologized in Dominion defamation case?

A protester holds a sign that says Fox is Guilty.

April 19, 2023 5:55 PM PT

Late-night show host Jimmy Kimmel isn’t a fan of Fox News. He frequently hammers the conservative network and its personalities in his opening monologue.

But Kimmel expressed disappointment with the news Tuesday that Fox News agreed to pay $787.5 million to Dominion Voting Systems to settle the landmark defamation case.

The reason? The agreement did not come with a requirement that the network’s stars apologize publicly for the false claims they made about the Denver-based company using its voting machines to manipulate votes during the 2020 election.

“We naively thought this was about making Fox News take responsibility for destroying [Dominion’s] reputation because that’s what they told us it was about,” the comic said on his ABC program. “But no, they took the money instead, which means the liars who knowingly misled their oatmeal brain viewers and seriously damaged our democracy don’t have to say anything about it.”

Kimmel’s quip, however, had serious undertones and was part of a chorus of commentators and anchors who questioned and criticized the company for taking the money without a demand for public contrition or a retraction from the conservative-leaning network.

Fox News merely acknowledged Judge Eric Davis’ earlier ruling that the network made false statements about Dominion inside of a longer statement that it will continue to uphold the “highest journalistic standards.”

The mixed reaction put attorneys for Dominion on the defensive during their post-trial interviews after the settlement was announced. On what should have been a celebratory day, they had to justify the decision made by their client as pesky pundits rained on their victory parade.

Although the settlement was unquestionably a financial and reputational blow to the network, some critics even suggested it was a win for Fox News and its founder, Rupert Murdoch, to make it through such an embarrassing storm by only writing a check.

However, the company’s troubles are far from over. Another case — a $2.7-billion suit by voting software company Smartmatic — has yet to go to trial. And investors are lining up with their own lawsuits.

Davida Brook, a partner at the Los Angeles law firm Susman Godfrey, which is part of the team working on Dominion’s behalf, stood by the decision to take the deal without an apology.

“I think the dollars and cents is what we felt mattered to Fox and we felt this number mattered,” Brook told The Times in an interview.

Brook noted that Dominion’s commitment to holding Fox News accountable was demonstrated in its willingness to go to trial. The settlement came after a jury was selected for the case in Delaware Superior Court, and many legal experts were surprised the case went that far given the damaging revelations that emerged in discovery.

Court documents showed that Murdoch and his top lieutenants at Fox News were aware that former President Trump’s claims of voter fraud in the 2020 election were false, but agreed to give them continued coverage in an effort to keep unhappy viewers from fleeing.

Proceeding with a trial was a roll of the dice, as the plaintiffs would have to convince the jury that Fox News acted with malice in presenting the false statements about Dominion and the 2020 election. Such accusations are difficult to prove and are often why such cases are settled out of court.

But a verdict in Dominion’s favor would have only gotten the company a monetary award for damages and no guarantee of an apology.

Fox News attempted to push a narrative that Dominion was pursuing the case only for the money, noting that it’s owned by a private equity firm, Staple Street Capital, in nearly every news statement about the case. It also emphasized that there was no proof that the business had been damaged by statements made on the network.

Brook pointed out that there are easier ways for investors to turn a profit than to go to war with a powerful entity such as Rupert Murdoch’s Fox News.

“It’s not every day that an investment fund finds itself in an incredibly heated fight about whether or not a presidential election was stolen from the American people,” Brook said. “The way they reacted was to stand by their partner Dominion through thick and thin for years and to be in the trenches fighting with us.”

Although Dominion and its owners did indeed have the fortitude to go to trial, defamation cases are first and foremost about the money, according to lawyers who have had vast experience with them.

They say it’s not realistic to believe that the case could force Fox News to sacrifice its pugilistic image, which is a draw for much of its audience, even though Dominion representatives often said the company was pursuing the case for the sake of preserving democracy.

“The law of defamation isn’t and frankly shouldn’t be a mechanism to get a referendum on American history,” said Lee Levine, a veteran attorney specializing in 1st Amendment cases. “It’s about compensating people for injury to their reputation. A court can’t order an apology. It can’t order retractions.”

Although neither side commented publicly on the discussions leading to the settlement, people close to the matter said the apology was not a major sticking point. But Levine believes Fox News would have been wise to pay more in order not to apologize.

“It was worth several hundred million dollars not to do that,” Levine said. “It would have wreaked havoc on their viewership. If Sean Hannity looked into the camera and said, ‘I lied’ and then apologized to Dominion, there would have been mutiny among their viewership.”

The internal communications and depositions collected as evidence in the defamation case demonstrated how Fox News executives and on-air talent are attuned to the mood of their conservative audience and were fearful of offending them when Trump and his representatives pushed his unfounded claims that the 2020 election was stolen from him.

Fox News insisted the claims were newsworthy and reporting on them was protected by the 1st Amendment, but the judge disagreed when he rejected the network’s motion to throw out the case. The network was dealt a significant blow when the judge cited the network for “discovery misconduct” after he learned that recorded conversations with Trump’s attorneys were not turned over as evidence.

Carl Tobias, a professor at the University of Virginia School of Law, said the sheer size of the settlement — the largest ever for a defamation case involving an American media company — makes a strong statement in itself about the behavior of Fox News and its journalistic transgressions.

“Dominion may not have gotten everything they wanted but they did very well,” Tobias said. “It’s like the Rolling Stones song, you can’t always get what you want, but you get what you need.”

Fox News settled Dominion defamation case for $787 million. Should it have apologized as well?

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