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So far, Fox and Donald Trump have gotten away with lying all they want to with no consequences. That could change this month. Tomorrow the defamation trial Dominion Voting Systems v. Fox News begins. Next week it is E. Jean Carroll v. Donald Trump. Will justice be served? Stay tuned. Except not to Fox.
In the Dominion case, the First Amendment is also on trial. Fox is contending that a decision for Dominion would destroy freedom of the press. However, the judge has already ruled that is not an issue and all the jury has to decide is whether Fox hosts lied intentionally or by accident. Legal experts say that the e-mails and text messages Dominion will show at the trial make a pretty strong case that the hosts knew exactly what they were doing and were lying because management thought that telling the truth would offend their audience. So they lied for business reasons. The First Amendment does not give private corporations the right to defame someone or some company because it is better for business that way.
Suppose Dominion wins and the jury awards it most or all of the $1.6 billion it is asking for in actual damages plus some punitive damages on top of that? Would it bankrupt the News Corp, which owns Fox? Probably not, but it might force Fox to be a lot more cautious about lying in the future (or at least be more cautious about documenting the lies in e-mails and text messages). Similar suits by Dominion against Newsmax and OANN definitely could bankrupt them, however. Oh, and a victory by Dominion would probably make Fox think carefully about settling a $2.7-billion lawsuit from Smartmatic out of court. Smartmatic certainly wants to restore its good name, but an offer of $1 billion in cash to be paid within 24 hours of signing the agreement with no hassle could be tempting.
A Fox win would undoubtedly open the floodgates. Then management would have no fear and urge the hosts to let 'er rip and give the viewers what they want with no regard for the truth at all since there won't be any penalties no matter what they say on air. Catherine Ross, a professor at George Washington University specializing in the First Amendment, said: "In my opinion, [a Fox victory] would open our society up to a return to what used to be referred to as the yellow journalism of the late 19th century, like the Hearst newspapers that led to wars."
The trial will begin tomorrow at 9 a.m. ET. Well, assuming it begins at all. Late Sunday, it was reported that there will be last-minute talks today in an effort to avoid a trial. It is extremely unlikely that Fox will willingly admit to wrongdoing, so the question is presumably whether there is enough money to make it worthwhile to Dominion to settle, given that their reputation and their business have been permanently damaged. IF they make $100 million per year (which is a nice round number, but is presumably high), and Fox is willing to write a check for the equivalent of, say, 20 years' revenue, then Dominion might decide it's worthwhile to take the money. Note that the judge ordered the two sides to spend some time talking settlement, so the willingness of Dominion (or of Fox) to participate in this meaning might not tell us anything beyond that they don't want to anger the judge. (V)