Fox and Murdoch had already lost in the court of public opinion
Murdoch and Fox News have been discredited by the humiliating size of Fox’s settlement and the scale of damaging information that has already made its way into the public domain.
The dramatic last minute settlement between Fox News and Dominion Voting Systems for $787.5m just as the trial was about to open is one of the largest defamation settlements in American legal history.
The legal action over totally false Fox News broadcasts that the Canadian voting machine company rigged its algorithms to help elect President Biden and deny President Trump a second term, looked as if was about to proceed to its bitter conclusion.
Even though Dominion got slightly less than half the $1.7bn it was claiming – $1bn in diminished enterprise value and $600m from Fox for lost profits – it has won something more precious: in effect an admission that Fox News repeatedly broadcast false information that supported the conspiracy theories that a Trump victory had somehow been stolen.
As the Dominion lawyer Justin Nelson put it: “The truth matters. Lies have consequences.”
Rather bizarrely, Fox lawyers dropped a statement claiming that the settlement somehow reflected the commitment of Fox News “to the highest journalist standards.”
Strangely those standards did not, according to The New York Times, lead to Fox News actually reporting much about such a dramatic story.
Winners and losers
Who are the winners are losers here? Apart from the obvious fact that Dominion has won itself a sizeable pay-off amid claims that the scale of the monetary harm it suffered might not have added up to as much as $1.7bn.
Trump is clearly once again a loser because on the eve of the trial he called on Fox News to stick to its guns and defend the stolen election narrative in court.
At a superficial level Rupert Murdoch and his son Lachlan Murdoch, chief executive of Fox News, have managed to buy their way out of trouble, at least for now. Had the trial continued they would almost certainly have had to give evidence under oath on what they knew of the baseless allegations, when they knew it and what they did or failed to do about it.
The mood music had not been good for either Fox or Murdoch father and son.
Fox’s lawyers had already managed to upset the presiding Superior Court Judge Eric Davis last week in pre-trial hearings. They put forward Suzanne Scott, Jay Wallace and Joe Dorrego as the named officers in charge of Fox News, but neglected to inform the court that Rupert Murdoch is executive chairman of Fox News.
As a result Judge Davis said the Fox lawyers had “a credibility problem” and that he might have ruled differently in pre-trial judgements if he had known.
Judge Davis accepted that all sides agreed the allegations were false and decided to put to the jury only the issues of whether “actual malice” was involved and the extent to which Fox News executives had participated.
The judge also made clear his view that a free speech defence might not apply to the deliberate telling of lies – something that would have undermined the main plank of the Fox defence – that they had only repeated what others had been saying.
The nature of that jury may also have been crucial to the Fox decision to settle. Delaware, where the trial would have been heard, is an overwhelmingly Democratic state and the home state of President Biden. Even worse, New Castle County, where the court is located, and from where the jury would have been drawn, is a strongly Democratic area.
If Rupert Murdoch had been called to testify under oath he might have had to admit he knew broadcast claims about Dominion were likely to be false, and at the very least, did nothing to prevent further broadcasts.
Anyone who knows anything about the Murdoch empire, knows as a truism, that nothing of importance happens without his say-so, and if something untoward slips through – it only happens once.
One of the most inflammatory hosts on Fox News, Tucker Carlson, has even been quoted as saying the main worry at Fox was that telling the truth would insult their “dumb” audience.
The central allegation against Murdoch and his American television channel is that he was prepared to at least tolerate the repeated broadcasting of damaging lies, which encouraged the totally erroneous conspiracy theory that the election of President Biden was illegitimate.
Moreover, critics say the cynical motive seems to have been to protect Fox audiences and advertising revenues from the fear that anything approaching normal journalism would drive them away to even more right wing outlets.
Avoiding existential damage
It is hardly too much to claim that by his actions, or inactions, Rupert Murdoch has managed to pose a threat to the democratic system of his adopted country.
You can see why they decided to settle. If the Dominion allegations against him and Fox had been proven in rigorous court cross-examination, it would have amounted to existential damage to what remains of Murdoch’s reputation as a serious media player.
We will never know for sure now, but perhaps Dominion was in the end prepared to settle because of the difficulty of proving “actual malice,” the only way to get around the protection offered to the American media by the First Amendment of the constitution, which guarantees freedom of speech and the press.
As it is, both Murdoch and Fox News have already been discredited by the humiliating size of the settlement, and the scale of damaging information that has already made its way into the public domain.
Far from the end of the matter
What if Murdoch and Dominion had pushed ahead and Dominion had managed to win?
The final irony might then have been that Murdoch’s indefensible behaviour ended up undermining the protection of the First Amendment for those media outlets doing serious, responsible, expensive investigative journalism.
Yet in a very real way the case against Rupert Murdoch and Fox News has already been lost in the court of public opinion even though so far Fox News ratings seem to have been unaffected.
The days when you could make excuses for Murdoch – after all, he loves the media, invested in new presses when few others were interested, and The Wall Street Journal and The Times are decent newspapers – are all but over.
The bottom line, in more ways than one, is that Murdoch was prepared to support Trump, a man he privately regarded as an idiot, and potentially imperil American democracy, to keep his ratings up and his profits flowing.
And this of course is far from the end of the matter. Smartmatic, another voting machine manufacturer, is also suing Fox, this time for $2.7bn, and a New York judge has ruled the case should go to trial.
Smartmatic has said that Dominion has exposed some of the Fox misconduct.
“Smartmatic will do the rest,” the company says pointedly.
Raymond Snoddy is a media consultant, national newspaper columnist and former presenter of NewsWatch on BBC News. He writes for The Media Leader on Wednesdays — read his column here.
This article has been updated to reflect developing news from the settlement.