If Every Time Fox Lied Just Result Fined, On the Verge 2024 Election, This (US$787.5 million) Just Setback for Democracy
If Every Time Fox Lied Just Result Fined, On the Verge 2024 Election, This (US$787.5 million) Just Setback for Democracy
On the Sunday following the 2020 US election, hours after lawyer Sidney Powell told Fox viewers that election machine-maker Dominion was “flipping votes” against Donald Trump, Hootan Yaghoobzadeh received an unexpected visit from his parents to his Upper West Side home. “They just showed up,” recalls the New York-based investor, whose private equity firm Staple Street owns a controlling stake of Dominion. “They were just worried for me personally because we are immigrants, we came to this country when I was five from Iran . . . and my parents thought they saw the beginnings of what led them to leave their home.”
Almost immediately, Yaghoobzadeh and his partners began crafting a plan that drew on their extensive financial backgrounds. “We were going up against a behemoth,” Yaghoobzadeh said of Rupert Murdoch’s Fox Corporation. “We had to be faster, better and smarter, but we knew we had the truth on our side.”
On Tuesday, Yaghoobzadeh’s mother stood behind him on the steps of a Delaware courthouse, as he expressed his pride in “exposing the truth and holding those who knowingly spread lies accountable”. The $787.5mn settlement Fox paid to end the case is one of the largest defamation payouts ever.
Yaghoobzadeh’s small Manhattan investment firm, with roughly 20 employees, had taken on conservative media billionaire Murdoch, and won. Staple Street’s involvement started years earlier, with a buyout deal so unremarkable it was not covered by the mainstream business press. In 2018, it invested $38mn to acquire a majority stake in Dominion at a $80mn valuation.
After the 2020 election, it planned a number of acquisitions to take advantage of Dominion’s scale, executing a private equity roll-up strategy that has become common in industries such as car washes, dental practices and waste removal. That plan went out the window in November 2020 as Fox News personalities like Maria Bartiromo and Lou Dobbs aired repeated claims that Dominion was involved in a plot to steal the election from Trump, alleging the company had bribed election officials and that it had once done the bidding of late Venezuelan leader Hugo Chávez.
The onslaught came as a surprise. “When you are being accused of treason on national television, you know you have a crisis on your hands,” said Yaghoobzadeh.
Before founding Staple Street shortly after the 2008 financial crisis, Yaghoobzadeh and others at the firm had cut their teeth on white-knuckle distressed debt investments and “special situations” at Cerberus, one of the most feared investment houses on Wall Street. Cerberus had experience in high-stakes court battles for control of companies requiring the fortitude not to yield to threats or better resourced foes.
In 2009, it salvaged its investment in Chrysler despite the US carmaker’s bankruptcy. Those instincts would prove useful. Staple Street “understood that if [Fox] sensed even an ounce of weakness then we would lose”, said Yaghoobzadeh. One of the firm’s first calls went to Tony Fratto, a former spokesman for George W Bush’s administration who knew many of Fox’s stars, and who ran the Washington-based Hamilton Place Strategies, a communications firm now renamed Penta. He now heads communications for Goldman Sachs.
Fratto and his team were “not cheap”, a person familiar with their hiring said, but Staple Street knew they “needed to pay for professional crisis management”. A deal was struck for a campaign they thought would last just two months. The newly assembled comms team started sending polite requests for Bartiromo and others to investigate the veracity of the conspiracy theories emanating from the Trump campaign and its allies. After that failed, Fratto and his team shifted tack, and began sending “Setting The Record Straight” messages to the network’s executives, reporters and producers. “Maria in particular was once the foremost financial journalist [in the US],” a person familiar with the strategy at the time said. “She knows how to find out whether a company is owned by the Venezuelans.” Those emails and texts would form the basis of a complaint filed by Dominion in Delaware in March 2021, seeking $1.6bn in damages.
While the legal team assembled by Staple Street knew there must have been internal communications at Fox to help their case, they could not have predicted how many emerged. Fox’s lawyers handed over millions of documents with a variety of juicy revelations, including that primetime host Tucker Carlson thought Powell was “lying”, while fellow star Laura Ingraham believed she was a “complete nut”. In its defence, Fox planned to tell the jury that Trump’s allegation of election fraud “was about as newsworthy as you can possibly imagine”, a person familiar with their plans said, and characterise the case as a high-stakes proxy battle for press freedom in which it had acted with journalistic integrity.
Fox contended Dominion’s lawsuit was “a political crusade in search of a financial windfall” for the company and its “private equity owners”. At trial, it intended to argue that if there were any damages suffered by Dominion, they were “nowhere close” to $1.6bn, the person familiar said.
Indeed, Staple Street’s investment in Dominion was already a success as its court battle intensified. Filings with the Securities Exchange Commission show that Dominion’s value had roughly tripled between 2018 and 2021, growing profitable enough for Staple Street to repay more than $30mn in acquisition debt. Court documents also show Staple Street had recovered much of its original investment through dividends Dominion paid its owners. An expert it hired valued Dominion not far from the near-$800mn settlement it ultimately received.
The proceeds from the settlement are essentially pure profit to Staple Street, which stands to make hundreds of millions of dollars. The cash will be distributed to Dominion’s owners including Staple Street, chief executive John Poulos, and some senior employees. There was no separate provision for Fox to pay the company’s legal fees, so its recovery is likely to be substantially lower than $787.5mn, as plaintiffs’ lawyers on contingency contracts typically command about a third of the settlement sum. Corporate taxes must also be paid.
First Amendment scholars expressed disappointment that Dominion did not hold on for a trial, which Catherine Ross, a professor of law at George Washington University, said “could have drawn a very bright line about when news organisations go too far”. Yaghoobzadeh, a Jewish refugee from the Iranian Revolution, acknowledged the devastating emails unearthed were an “upside” to Dominion’s pursuit of a lucrative damages payout. But he rejected any suggestion that Dominion, and by extension Staple Street, only ever had money in mind. “We wish this never happened to us,” he said. “They gave us no choice.”
Murdoch “became an American citizen for business reasons,” according to Richard H. Curtiss, editor of the Washington Report on Middle East Affairs. Keith Rupert was born in Melbourne, Australia, on March 11, 1931. “Rupert’s father, Sir Keith Murdoch, was a newspaper publisher, and his mother an Orthodox Jew,” Curtiss wrote, “although Murdoch never offers that information in his biographies.”
Murdoch’s father married Elisabeth Joy Greene, daughter of Rupert Greene in 1928. They had one son, Keith Rupert and three daughters. Later in life, Keith Rupert chose to use Rupert, the first name of his Jewish maternal grandfather.
The young Keith Rupert was educated at Australia’s fashionable Geelong private school, and went on to the elitist and aristocratic Oxford University in England, according to Candour (UK) magazine.
“Rupert’s father Sir Keith Murdoch attained his prominent position in Australian society through a fortuitous marriage to the daughter of a wealthy Jewish family, née Elisabeth Joy Greene. Through his wife’s connections, Keith Murdoch was subsequently promoted from reporter to chairman of the British-owned newspaper where he worked. There was enough money to buy himself a knighthood of the British realm, two newspapers in Adelaide, South Australia, and a radio station in a faraway mining town,” Candour wrote in 1984. “For some reason, Murdoch has always tried to hide the fact that his pious mother brought him up as a Jew.”
While Murdoch may have “tried to hide” his Jewish roots, he has been quite forthright about his support for extreme right-wing Zionists, such as Benjamin Netanyahu and Ariel Sharon.
Netanyahu, who wrote a book entitled The War on Terror: How the West Can Win in 1986, is a frequent commentator on Murdoch’s Fox News.
Murdoch’s support for Zionism extremists is well known and a matter of record. As former the 53rd New York Governor George Elmer Pataki (1995-2006) said, “There is no newspaper in the U.S. more supportive of Israel than the [Murdoch’s] New York Post.”
It is through a network of Zionist organizations, in which Murdoch plays a central role, that Murdoch is connected to the individuals who arranged the privatization – and obtained control of the World Trade Center – shortly before its destruction.
These key individuals are: Larry Silverstein and the former Israeli commando Frank Lowy, the lease holders of dubious repute who gained control of the WTC property six weeks before 9/11, and Port Authority Chairman Lewis M. Eisenberg, who authorized the transfer of the leases.
Murdoch belongs to, and has been honored by, a number of leading Zionist organizations in which Silverstein, Lowy, and Eisenberg all hold senior positions. These organizations include the Anti-Defamation League (ADL), the United Jewish Appeal (UJA), and the New York-based Museum of Jewish Heritage – A Living Memorial to the Holocaust.
Fifty days before 9/11, Silverstein Properties and Lowy’s Westfield America secured 99-year leases on the WTC. The Port Authority of New York and New Jersey turned control of the World Trade Center over to the private hands of Silverstein and Lowy on July 24, 2001.
Silverstein and Lowy then took control of the 10.6 million-square-foot complex, which included the twin towers office buildings and two nine-story office buildings. Silverstein and the former Israeli commando Lowy then controlled all access to the World Trade Center.
Lowy leased the shopping concourse called the Mall at the World Trade Center, which comprised about 427,000 square feet of retail space.
“Six weeks before the WTC towers were destroyed, the Port Authority completed the process of leasing them for 99 years to Larry Silverstein, the developer who had built 7 World Trade Center [which mysteriously self-demolished at 5:25 p.m. on 9/11].
“Simultaneously, the retail space underneath the complex was leased to Westfield America, the US division of an Australian company that is one of the world’s largest operators of shopping malls.” Paul Goldberger wrote in New Yorker, May 20, 2002.
“Silverstein and Westfield were given the right to rebuild the structures if they were destroyed, and Westfield has the right to expand the retail space by 30 percent,” Goldberger wrote.
Silverstein is suing for some $7.2 billion in insurance money for the loss of the destroyed World Trade Center – and his expected earnings – for property he had leased with a down payment of $100 million – of borrowed funds.
“Murdoch is a close friend of Ariel Sharon,” Sam Kiley, The Times (UK) veteran journalist on the Middle East wrote about the man who took over the once famous British paper. Kiley said Murdoch’s friendship with the Israeli prime minister had caused senior staff at the paper to rewrite important copy.
“Murdoch’s executives were so afraid of irritating him that, when I pulled off a little scoop of tracking down and photographing the unit in the Israeli army which killed Mohammed al-Durrah, the 12-year-old boy whose death was captured on film and became the iconic image of the conflict, I was asked to file the piece ‘without mentioning the dead kid.’” Kiley wrote. “After that conversation, I was left wordless, so I quit.”
Sharon and Murdoch are old friends. On Oct. 15, 1982, a month after the massacres of thousands of Palestinian refugees in the Sabra and Shatila camps of Beirut, war crimes which occurred under Sharon’s direct command, the Israeli defense minister held meetings with Rupert Murdoch and others, reportedly in order to advance his “West Bank real estate grab.”
The visit with Sharon included a trip for Murdoch and his editors from New York and London that “took them on a bird’s-eye tour of Israel aboard a helicopter gunship, flying over the Golan Heights, West Bank and settlements.”
“I have always believed in the future of Israel and the goals of the international Jewish community,” Murdoch said at a spring fund-raiser for the Museum of Jewish Heritage – A Living Memorial to the Holocaust on April 29, 2001.
From the beginning, News Corp., his global media company, “has been supportive of the Jewish national cause,” Murdoch said.
Larry Silverstein, who had not yet acquired the lease on the World Trade Center, attended the fund-raiser with Murdoch and reportedly said about museum chairman Robert Morgenthau’s plans to expand the museum: “I’ll support you…as long as you keep it under 110 stories.”
“Henry Kissinger, Rupert Murdoch and Mortimer Zuckerman are on the [ADL] dinner committee,” according to a recent New York Times report on the ADL’s recent fund-raiser in which the controversial Italian prime minister Silvio Berlusconi received the ADL’s Distinguished Statesman Award.
Silverstein and Eisenberg have both held senior leadership positions with the United Jewish Appeal (UJA), a billion dollar Zionist “charity” organization, to which Murdoch and Lowy generously contribute. In 1997, Henry Kissinger presented Murdoch with the UJA’s award for “Humanitarian of the Year.”
Silverstein is a former chairman of UJA. This organization raises hundreds of millions of dollars every year for a network of Zionist agencies in the United States and Israel. Eisenberg, who was instrumental in obtaining the lease for Silverstein, is on the Planning Board of UJA.
Eisenberg in his role with the Port Authority was the key person who negotiated the 99-year leases for Silverstein and Frank Lowy’s Westfield America, who were in fact the low-bidders for the lease on the 110-story towers and the retail mall.
Murdoch and the Czechoslovakian-born Israeli commando Frank Lowy, a former fighter in Israel’s Golani Brigade, who emigrated to Australia in the 1950s, have had a long friendship, which Murdoch recounted during an American Australian Association fund-raising dinner in honor of Frank’s son, Peter S. Lowy, in New York on November 20, 2002. Larry Silverstein and his wife also attended the American Australian event.
Some reporters refer to the American Australian Association, whose membership includes James Wolfensohn, the president of the World Bank, who raised cash for Rupert Murdoch when he first expanded into the United States, as “the kangaroo mafia.”
“Frank was a brave and determined fighter,” Rafi Kocer, Lowy’s former commander, said. Lowy has donated some $350,000 to build a memorial museum in Israel for his former brigade.
Today, Lowy and his three sons control Westfield Corporation, one of the largest operators of shopping centers in the United States – and the world.
On September 12, 2001, The Jerusalem Post reported: “Frank Lowy, who emigrated to Australia from Israel in 1952, owns the 99-year lease for the 425,000 square foot retail portion of the destroyed World Trade Center…Westfield said today that it has insurance cover against terrorist attacks and its earnings will not be materially affected.”
Lowy, is described by the Sydney Morning Herald as “a self-made man with a strong interest in the Holocaust and Israeli politics.”
It cost Fox News nearly $800 million to settle a defamation lawsuit with Dominion Voting Systems, but that’s a pittance compared to what it cost American democracy. Dan Bongino, Jeanine Pirro, & Maria Bartiromo have all been FIRED by Fox “News.” This was an afterrmath of the Dominion Voting Systems settlement. Fox needs to to get rid of Tucker Carlson, Sean Hannity & Laura Ingraham.
That’s according to The Daily Beast’s Wajahat Ali, who contends that Dominion had a chance to strike a blow against a “disinformation network that knowingly promoted conspiracy theories and lies about the voting company’s role in the 2020 election.”
The Daily Beast columnist writes that: “Dominion Voting, America’s unexpected fighter for its fledgling democracy, settled its $1.6 billion lawsuit with Fox and decided to step out of the ring with a bag of money instead of vanquishing one of the country’s most destructive and influential peddlers of hate and disinformation.”
Fox News acknowledged some wrongdoing in a statement announcing the Dominion settlement, saying that it acknowledged “the Court’s rulings finding certain claims about Dominion to be false.”
Although weakened by the lawsuit, the right-wing network remains capable of “being a platform for white nationalist talking points—and is free to double down on its attack on our democracy, marginalized communities, the environment, and the truth.”
On Tuesday morning, as the legal team for Dominion Voting Systems walked from their hotel to the courthouse where they were about to finish jury selection, one lawyer turned to another and asked in a low voice about a possible settlement, “Is there anything going on?”
“No, not really,” the other replied. They loaded their slide deck into the courtroom’s audiovisual system and steeled themselves for opening statements.
An 11th-hour deal in their billion-dollar defamation suit against Fox News seemed dead, with talks between the two sides having gone nowhere.
One of Dominion’s biggest asks was a nonstarter for Fox: a public apology from the network for its role in implicating Dominion in a fictitious, algorithmically driven scheme to steal the 2020 election from Donald J. Trump. Fox’s insistence on no admission of wrongdoing at all was a nonstarter for Dominion. The two companies, whose lawyers had exchanged dollar amounts over the weekend, were also far apart on a settlement number.
But in a conference room down the hall from Judge Eric M. Davis’s courtroom in downtown Wilmington, Del., representatives for both sides weren’t giving up. In the room were the Dominion chief executive, John Poulos, and one of his top investors, the Staple Street Capital co-founder Hootan Yaghoobzadeh.
Representing Fox, in a call from Los Angeles, was its chief legal officer, Viet Dinh — a close lieutenant of Rupert and Lachlan Murdoch. Also calling in was a seasoned mediator whom both sides had brought in only 24 hours earlier — a veteran of wartime negotiations in the Balkans in the 1990s who was on a Danube River cruise with his wife.
Then, just as the judge was swearing in the jury, hard lines started softening. And just before 4 p.m., he announced that the two sides had reached a deal: a $787.5 million settlement, believed to be the largest in a defamation case.
This account of how the talks came together, averting what would have been the most significant defamation case to go to trial in a generation, is based on interviews with 10 people closely involved in or briefed on the negotiations, most of whom spoke anonymously to reveal details of the confidential talks.
The mediator, Jerry Roscoe, who would not share the particulars of the deal making, said in an interview that he had two key things working for him: the looming start of the opening statements and the finalization of jury selection. “The jury’s presence changes everything,” he said. “It’s a catalyst for decision making.”
Mr. Roscoe overcame the impasse with a breakthrough series of deal points that the two sides could at least work from, giving the talks a new intensity, according to several people briefed on the discussions. He knew top lawyers for both companies, having recently mediated another case in which their firms had also been on opposing sides.
Dominion’s Defamation Case Against Fox News
Fox News will pay $787.5 million to settle a lawsuit filed by Dominion over election misinformation, averting what would have been a landmark trial.
Victory of Defeat?: The settlement was among the highest ever for a defamation lawsuit. But some wanted to see Rupert Murdoch face a stiffer penalty.
Media Protections Under Assault: The conclusion of the case defused a high-stakes test of the First Amendment protections afforded to the media. But more challenges are likely on the horizon.
Looming Suits: The lawsuit filed by Dominion was not the only legal action that some news outlets were facing after making bogus claims about the 2020 elections. Here are those currently pending.
Making Things Plain: Even without a trial, the Dominion suit has revealed what Fox thinks of its viewers and, more importantly, how much it fears the very audience that it created.
The judge, who had been privately urging the parties to find a way to a settlement, made time where he could. Before opening arguments were set to begin, he dismissed the jury for lunch as the contours of an actual deal started to come into view. He grew visibly impatient as the jurors finished a platter of wraps and salads from nearby Cavanaugh’s — only to sit for hours awaiting the trial’s start.
Over the weekend, Lachlan Murdoch, intent on finding a way to a deal, had given his team the go ahead to raise the dollar amount the company would pay. And, during the talks, as the Fox offer increased, Dominion softened its bottom line about an admission of wrongdoing. The compromise: an acknowledgment from Fox that it understood Judge Davis’s pretrial rulings against the network — including that the defamatory Dominion conspiracies Fox had aired were objectively false.
The resulting Fox statement, a product of careful lawyering, went only so far, saying, “We acknowledge the court’s rulings finding certain claims about Dominion to be false,” falling short of what many of the network’s critics wanted. But it also gave Dominion’s lawyers the freedom to immediately announce the eye-popping amount they won, $787.5 million, a message in itself, the Dominion lawyer Stephen Shackelford told reporters outside the courthouse immediately after the trial’s abrupt end: “Money is accountability.”
That a deal came together at all was remarkable and unexpected. Neither side had made serious efforts to settle out of court since Dominion filed the suit more than two years ago. Dominion and its lawyers liked the strength of its case, bolstered by emails, texts and depositions revealing how many inside Fox had worried that their promotion of conspiracy theories about Dominion machines was wrong.
And Mr. Dinh, leading the Fox legal strategy, had advised the Murdochs that the case was winnable — continuing to insist Fox could prevail on appeal, even as the judge’s pretrial decisions against Fox News and its parent company indicated a harder-than-expected road for them in Delaware. Mr. Dinh told colleagues that he thought the Supreme Court might even find the case attractive and take it up on First Amendment grounds.
But as the case dragged on over Zoom hearings and courtroom arguments, Fox’s legal strategy — already facing an unusually large body of evidence stacked against it — faltered again and again, tripped up by a series of miscalculations, bad breaks and missed opportunities to settle.
Last summer, Fox replaced its legal team after the court allowed Dominion access to messages from the personal phones and email accounts of Fox employees — including both Murdochs. It brought on Dan K. Webb of Winston & Strawn, a seasoned trial lawyer and former federal prosecutor who negotiated the $177 million defamation settlement ABC News made with a beef manufacturer it associated with “pink slime,” a low-cost filler.
Part of the reason Fox and its new legal team remained convinced the case was winnable was that plaintiffs in defamation suits have to meet an exceptionally high burden of proof. The Supreme Court has given media organizations considerable latitude to publish even false information — as long as it wasn’t done intentionally or recklessly.
But Fox kept losing decisions with the judge, including his ruling that Dominion could also sue the larger Fox Corporation in addition to Fox News, opening up the Murdochs to more legal and financial exposure.
The court repeatedly sided with Dominion on the discovery process, giving the election company’s lawyers broad access to the private communications of Fox employees. Fox had made a settlement bid last year, but its offers fell far short of anything Dominion would consider, a person familiar with those discussions said. As the ruling kept going in Dominion’s favor, its lawyers were surprised that Fox was not making more of an effort to strike a deal.
In the months that followed, the private exchanges among Fox hosts, producers and senior executives were laid bare for the country to see, showing some of them criticizing and belittling Mr. Trump, mocking his legal advisers as drug-addled and drunk kooks, and expressing serious concerns about the conspiracy theories their colleagues were allowing on air.
The disclosures rocked the company, including the Murdochs, top network executives and network stars as so much embarrassing internal material came out into the open.
Included in one batch were bits from Mr. Murdoch’s own deposition, in which he had acknowledged that some of his hosts appeared to have endorsed false election conspiracy theories. Mr. Murdoch appeared to have a different take from Mr. Dinh about how his deposition had gone. And after Mr. Dinh said that the Dominion lawyer who led the questioning, Justin Nelson, “didn’t lay a finger on you,” Mr. Murdoch pointed to Mr. Nelson and said, “I think he would strongly disagree with that.”
On the legal front, Fox was planning to defend itself with a theory known as the “neutral reporting privilege,” which indemnifies news organizations when publicizing “newsworthy” charges about public figures — even when they are false charges.
But courts have not universally recognized that privilege. Judge Davis ruled that Fox could not use it as part of the defense. That gutted a foundational component of Fox’s strategy.
Chris Mattei, a lawyer who represented the Sandy Hook families in their defamation case against the Infowars founder, Alex Jones, said in an interview that a trial would have been “a blood bath for Fox.”
Worse, this month, the judge decided that he would allow Dominion to issue a subpoena compelling Mr. Murdoch to take the stand, presenting the prospect of an hourslong grilling of the aged media tycoon — he is 92 — by Dominion’s dogged litigation team, led by the firm Susman Godfrey.
But it was no surefire win for Dominion, either. The unpredictable nature of juries — in this case, 12 people and 12 alternates were seated and told to prepare for a six-week trial — was a looming uncertainty for the voting technology company. One juror was replaced after being sworn in because he broke down in court, insisting he couldn’t go through with it. Another could be seen sleeping during the proceedings on Tuesday.
Dominion lawyers were ready to take that chance to the end, preparing to move forward with the trial even once the 90-minute lunch break ended. Two of its lawyers, Mr. Nelson and Mr. Shackelford, sat at the plaintiff’s table focused on their prep for the opening while a third, Davida Brook, shuttled back and forth between the courtroom and the conference room down the hall where the settlement talks were taking place.
A presentation of roughly 60 slides had been loaded into the courtroom’s audiovisual system, some containing new damning revelations from the private communications inside Fox. Mr. Shackelford, who would have delivered Dominion’s opening argument, kept his microphone pinned to his suit jacket lapel. Members of his family were watching from the audience.
So was the witness Dominion planned to call first, Tony Fratto, an official in the George W. Bush administration who would have walked the jury through a timeline of key moments in Fox’s coverage of the 2020 election aftermath. Mr. Fratto was the Dominion representative who repeatedly pleaded with Fox hosts and executives to correct their coverage, to no avail.
The legal team was still putting the final touches on an opening week they’d carefully choreographed. Rupert Murdoch would be the second witness, on Wednesday, followed by Tucker Carlson, probably on Thursday. Ms. Brook planned to question him aggressively about his vulgar and misogynistic text messages about Sidney Powell, who’d gone on Fox to spin wild and implausible stories about a voter fraud conspiracy.
Mr. Nelson, who was still working on the questions he would ask Mr. Murdoch on Wednesday, had not prepared any statement in the event that the case settled. But when he and the other lawyers learned a deal was coming together early Tuesday afternoon, he started jotting down notes on a small, white piece of paper.
“The truth matters,” he wrote. “Lies have consequences.”
But the settlement is not good for American democracy. Fox News is arguably the most destructive force in US politics: 24 hours a day, seven days a week, it spreads right-wing propaganda and misinformation to millions of viewers and voters. Dominion had a real opportunity to expose Fox, drag its hate-making machine out into the open, put its executives on the stand, under oath, and force them to explain how they pushed the Big Lie while knowing it was, in fact, a lie. That didn’t happen, though. Dominion can put a price on its reputation, but you can’t really put a price on holding Fox accountable for what it’s done to democratic self-government.
So Fox paid and Dominion took the money, and now lots of people are disappointed. But the problem is actually bigger than the settlement—and that’s because, settlement or not, this is how the civil legal system is designed to work.
Civil litigation operates on the premise that money is the same as accountability. We have a criminal justice system that is supposed to mete out nonmonetary punishments to people who commit crimes. But Fox did not violate any criminal laws. Lying is not a crime, nor is spreading propaganda or misinformation, and most people reading this would probably agree with me that this is actually a good thing. The criminal justice system both over-criminalizes minor offenses and over-incarcerates people (especially poor people) found guilty of those criminal offenses. I don’t think we want to invent more crimes and throw more people in jail for violating additional laws. If we did criminalize lying, I guarantee that more poor people would end up in prison than Fox News executives.
The civil litigation system, meanwhile, is supposed to handle wrongdoing, accidents, injuries, breaches of trust or contract, and everything else that doesn’t rise to the level of conduct punishable by incarceration. That system works on the belief that infractions can be commodified and justice can be achieved wholly through financial penalties. The civil system puts a price tag on everything. There are charts that you can look up that tell you how much your body parts are worth, depending on what state you are in when you lose one. Did you have your arm cut off at work? In Alabama, that’s worth $49,000; in Georgia, the same arm is worth $118,000. Employers in industries where arms are likely to be cut off budget for this.
The civil system isn’t designed to produce something even as simple and human as an apology. Apologies, or admissions of guilt, are reduced to their monetary value and priced into the settlement or damage award, the same as anything else. People wanted Fox to be forced, at a minimum, to apologize and clearly admit that it lied. Instead, the network released a carefully worded statement saying it “acknowledge[s] the Court’s rulings finding certain claims about Dominion to be false,” and moved on. I can’t know precisely how much money Fox kicked in to make that statement instead of something more apologetic, but I know it was an integer greater than 1.
While it might be easy to dunk on Dominion for selling out, it’s worth remembering that most people would make the same calculus. We see it all the time in wrongful-death lawsuits. There is a number—there is always a number—that a family will settle for, even in a case where some institution has contributed to the murder of their loved one. And, cards on the table, I have a price too. If Fox defamed me, I’d want to clear my name and force it to apologize and help save America. But there is a number Fox could put in my bank account that would make me “the brother who was defamed by Fox but now lives in Barbados, chilling with Rihanna, laughing about how our families never have to work again.”
If it sounds like I’m defending the civil litigation system, I’m really not. I think the system is broken precisely because it works on the capitalist brain-rot that posits that everything of value can be reduced to money.
Proponents of the system point to deterrence. They’ll argue that the threat of heavy monetary damages deters people, corporations, and institutions from behaving badly. And that’s true some of the time. Products, generally, are safer because of civil litigation. Lawsuits are the reason a “bag of glass” isn’t actually a kids’ toy. They’re also the reason your car doesn’t spontaneously combust and packs of cigarettes come with warning labels. I’m not opposed to civil lawsuits. They have their value. In some instances, civil litigation can spur a change in corporate behavior far more quickly than legislation passed by Congress, and that’s one of the reasons Republicans are always interested in protecting their donors and interest groups from civil litigation.
But when applied to the very wealthy, or the very poor, the deterrence aspect of the civil law system breaks down. Many people are what lawyers call “judgment proof.” They don’t have a lot of money or assets, so an injured party can’t really recover damages from them, no matter what they do.
On the other end of the spectrum, the civil system is a complete joke to wealthy individuals or corporations with the ability to pay. Corporate bean counters are more than capable of budgeting for the harm their companies cause and then, in the deepest of injustices, pass that cost on to consumers. Patients pay when a doctor’s incompetence leads to a malpractice settlement that bumps up the hospital’s insurance premiums. Motorists pay when oil companies get sued for running their tankers into a penguin colony and are forced to adopt new safety measures. And, yes, taxpayers pay for police brutality settlements that never seem to result in police departments’ changing their brutal ways or even taking budget hits to pay their cities back. The money from these settlements helps the victims, but they don’t stop corporate or institutional bad behavior
The very wealthy are not deterred by monetary damages—they just chalk up those damages as part of the cost of doing business. They’ll change their business practices only if the damages outweigh the expected profits of the objectionable behavior. When behaving badly is the business model, nothing changes.
Which is precisely why Fox News will change nothing after its Dominion settlement—and the settlement that is sure to follow with Smartmatic, another voting machine company, which is suing Fox and others for $2.7 billion. The penalty will not stop Fox from misleading the public, or from putting liars on air. It will not make Fox reform its journalistic standards (or, you know, adopt journalistic standards). It will not make Fox stop fomenting hate, bigotry, sexism, or xenophobia. Fox’s business model requires those things, and the civil damages left it in business. To quote Warden Norton from Shawshank Redemption: “Nothing stops. Nothing.”
If you wanted Fox to be held accountable, you’ve come to the wrong legal system. We do not hold wealthy corporations accountable in this country. Monetary damages can masquerade as punishment, but they’ll never look like justice.