Now that the dust has (sort of) settled at Fox News and the anchors have played a bit of musical chairs, it’s time to unpack the historic $787.5 million settlement in the Dominion v. Fox case. While some media law enthusiasts and journalists were hoping to see how the case played out at trial, there are still some lessons to be learned from one of the most significant—and entertaining—defamation suits in recent history.     

1. The Pivotal Days Leading up to Trial.

There is a lot of speculation about what ultimately led to the $787.5 million dollar settlement. Leading up to trial, there were days of pretrial hearings, which could have played a role in forcing Fox to the table—albeit with more money. Judge Davis was insistent upon informing Fox’s counsel that he would stop any argument at trial that conflicted with his summary judgment rulings, including his significant finding that the statements Fox made were false.

Fox may have also been incentivized to settle before trial, among other reasons, because if there was a finding of actual malice—any damages may not have been covered by insurance. By settling before there was a potential finding of actual malice, it’s possible insurance is footing the nine-figure bill to Dominion.

It’s also possible that whatever the lawyers learned about the jury composition could have contributed to the ultimate settlement.

But it was the 11th hour mediation with JAMS mediator Jerry Roscoe, which he reportedly handled from his European river cruise, that may have brought the parties to agree on $787.5 million and the ability for Dominion to disclose that figure. 

2. Misinformation Wars.

Fox's legal woes with the 2020 election do not end here. In addition to Dominion, Smartmatic is suing Fox News for defamation and seeking $2.7 billion in damages in New York state court. Smartmatic, an election technology company, claims the Fox news spread false information that its voting software helped rig the 2020 election. The discovery exposed in the Dominion case, and the settlement, could affect the outcome of the Smartmatic case. 

The case is moving a little slower than the Dominion suit. Fox filed a motion to dismiss Smartmatic’s amended complaint on March 31, 2023, and Smartmatic filed an order to show cause seeking certain Fox documents, on April 12, 2023. A subpoena was served on non-party and former President Donald J. Trump, and a notice of that subpoena was filed on May 9, 2023.

3. Copycat Suits.

Based on the massive settlement Dominion received, it’s possible we start to see copycat lawsuits of other companies or individuals targeting misinformation. The Dominion v. Fox case could be used as a roadmap.

4. Where Do We Stand with Actual Malice?  Since the landmark New York Times v. Sullivan Supreme Court case, there has been an extremely high bar for public figures to prove defamation. Public figures must show that the statements made were not only false, but were made with actual malice, that is knowing falsity or reckless disregard for the truth of the statements.

With the Dominion v. Fox case, Dominion landed a significant victory on summary judgment with Judge Davis holding that the statements Fox made were false, so all the jury would have decided at trial was whether the statements were made with actual malice and damages. We thought we might learn more about what qualifies as actual malice with the jury verdict in this case. The evidence pointing towards actual malice seemed strong, but, ultimately, the case can't be used as precedent for what qualifies as actual malice. 

Also, given all of the rhetoric from the right (including from a couple of Supreme Court Justices) about a need to change defamation law, and particularly the actual malice standard, it is interesting that Fox relied so heavily on the current law in defending itself. The ultimate impact of the Dominion v. Fox case could be that it shows that the Sullivan test continues to provide broad First Amendment protection for the media but is far from absolute. A media outlet that deliberately conveys false content can be held responsible.  

5. Spreading False Information Has Additional Consequences. 

In the days after the settlement was announced, Fox News let Tucker Carlson go, one its most prolific and highest-rated anchors. Several reports indicate that text messages that came out in the days leading up to trial that Tucker Carlson sent could be what ultimately led to settlement and Fox’s decision to let him go.

Ultimately, Dominion attorneys were able to publicly disclose the $787.5 settlement amount and make a statement including that, “the truth matters. Lies have consequences.” 

The case is US Dominion, Inc., et al. v. Fox News Network, LLC, No. N21C-03-257EMD.