It was a beautiful fantasy. Tucker in tears. Hannity smirkless. Ingraham gagging on her mea culpa, which we all wanted to hear set to music. The mere thought of Rupert Murdoch withering under oath had us all aswoon.
No question, the trial would have been a hoot. But hey, Fox settled. They took the hit.
So now that we're past our reflexive indignation, let's take a moment to savor just how big a hit they took, and to understand that the hits will keep on coming for quite some time.
There is little upside here for Fox. Yes, they live to fight another day — which was always going to happen, no matter what. Yes, they save themselves the humiliation of seeing Murdoch and Bartiromo grilled on a spit in open court — which would have been fun, but not especially helpful. And yes, there's this icky feeling that the settlement money is being shrugged off as petty cash — which it most certainly is not.
But any way you look at it, Fox has a lot of bad road ahead. They're being squeezed financially — which goes to the core of their very being — and we can be quite sure that it hurts. Not as much as we might like it to, but let's take the win.
The settlement is what it is — the outcome of a civil litigation between two corporations, each with its own business agenda.
For Dominion, it's an unqualified victory. They've suddenly added a staggering cash infusion of $750 million to a company with a market valuation of roughly one-tenth that amount. This was much more than they thought they'd win at trial, their $1.6 billion asking price notwithstanding. I doubt they were expecting such a windfall, but it was the sort of deal few among us would think twice about taking.
Saving democracy was never part of Dominion's litigation strategy, and it would be foolish of us to expect otherwise. They weighed that windfall against a trial that, while promising legally, was a major risk financially. Even with the myriad advantages the judge had bestowed on them, First Amendment litigation is no slam dunk.
A jury is a fickle organism. Even if it found for Dominion, it might have short-changed them on the monetary award. It might have even found for Fox, hard as that is to believe.
So Dominion made an understandable business decision. They took the money, and who could blame them? But let's not lose sight of the fact that in the process, they landed significant blows against the empire.
Their discovery was epic. The contemporaneous records Dominion collected were surely among the juiciest ever assembled in a defamation lawsuit. They stripped the bark off Fox and exposed the underlying rot for all the world to see.
And now, all those evidentiary materials they obtained in discovery — all those emails, texts, and depositions — are forever part of the public record. They're producible in any future court of law, and irrefutable in the press.
So while a trial would have made fabulous theater, there's much to be said for it never having happened. The glass is way more than half full:
Because the trial never happened, there won't be an appeal of the outcome. If the jury had ruled for Dominion, as expected, the subsequent appeals process would have been lavish, expensive, and slow. Fox would have launched appeals, not just of the verdict, but also of the jury award, and of each of the adverse pretrial rulings — the ones that eviscerated every argument Fox had tried to make.
Because the trial never happened, Judge Davis's scathing admonishments of Fox from the bench are now enshrined in the public record. They can't be reversed or contradicted on appeal.
Because the trial never happened, Fox has basically pleaded "no contest" to everything Dominion has accused them of. There is now no way for Fox to refute or back away from any part of that. No court of law will ever be able to overlook the documented falsehoods that Fox has legally admitted to.
Because the trial never happened, Fox is stuck with a gob-smacking financial obligation that — fun fact — they've already paid. That settlement will not be subject to appeal, and Dominion has already cashed the check.
Because the trial never happened, no new legal ground had to be broken. No precedents needed to be set, which is probably a good thing. First Amendment law isn't well equipped to handle the issues raised by a propaganda channel masquerading as a news organization. Legal minds on both the left and right will be arguing that the bar is too high for proving defamation — that it should be much easier to sue a media company. It's an idea that has some appeal, until you realize it puts you on the same side as Clarence Thomas and Neil Gorsuch. Which brings us to one of the very best things about this settlement:
Because the trial never happened, the case will never reach the Supreme Court. Need I say more?
If the glass still isn't full enough for you, you can consider all the delicious litigation still on deck. The Smartmatic suit will be a monster, and Fox will face, more or less, the same set of decisions they faced with Dominion.
And don't forget the shareholder actions, which are just getting started. These will involve Fox stockholders suing the board of directors over corporate governance issues. They'll be claiming that the board breached its fiduciary duties, leaving the company financially vulnerable. Any shareholder group could theoretically demand damages in almost any amount. And a judge could theoretically remove the Murdochs, Paul Ryan, and anyone else from the board.
And that's just what we're hearing in the first week since the settlement. You can bet there are dozens of hot-shit litigation firms staying up late, thinking through all the legal angles as we speak.
Which is not to say this is a great victory for democracy. The Murdochs will not be chastened. They'll have to tweak a few business practices, but the basic model still works. There are plenty of ways to lie without defaming someone, and Fox is proficient in all of them.
Still, Dominion has done us a service, and they've marked out a path for others to follow. This settlement may not change Fox's business model, but it will make it a lot more expensive to sustain.
Almost on cue, I am now hearing that Fox has fired Tucker Carlson. The pundits are abuzz with speculation about why, and there's a whole constellation of possible reasons. But for me, just free associating, the first thing that comes to mind is money. Not that it's a cost-cutting measure alone — I'm sure there's more to it — but when it comes to the Murdochs, never doubt that money is, indeed, an object.
After all, they can buy ten bigoted, misogynist, homophobic blowhards for the price of one Tucker. As long as they're cutting their losses, why not cut that one?
Nicely stated. Fox doesn't understand the rope-a-dope; the are clearly on the ropes.ReplyDelete