The NPR Politics Podcast - A $787.5 Million Check — How Fox News Ended Election Lies Lawsuit

Episode Date: April 19, 2023

It remains to be seen whether Fox News will have to retract any of the baseless claims it broadcast about Dominion Voting Systems, which was suing the broadcaster for $1.6 billion dollars in damages.This episode: political correspondent Susan Davis, media correspondent David Folkenflik, and Colorado Public Radio reporter Bente Birkeland.The podcast is produced by Elena Moore and Casey Morell. It is edited by Eric McDaniel. Our executive producer is Muthoni Muturi. Research and fact-checking by Devin Speak.Unlock access to this and other bonus content by supporting The NPR Politics Podcast+. Sign up via Apple Podcasts or at plus.npr.org. Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Support for NPR and the following message come from the Kauffman Foundation, providing access to opportunities that help people achieve financial stability, upward mobility, and economic prosperity, regardless of race, gender, or geography. Kauffman.org Hi, this is Darcy from Seattle, and I am about to mow my lawn for the first time this season. This podcast was recorded at... It's 6.01 p.m. on Tuesday, April 18th. Things may have changed by the time you hear this, but hopefully my lawn will be mowed.

So it begins. Okay, here's the show. Springtime is the best time. Hey there, it's the NPR Politics Podcast. I'm Susan Davis. I cover politics. And a few hours ago, we taped an amazing podcast for you about the opening day of the trial between Dominion voting systems and Fox News over disinformation and the 2020 election. And then things changed before you could even hear the episode. Dominion's attorney, Justin Nelson, sums it up this way. The truth matters. Lies have consequences. Over two years ago, a torrent of lies swept Dominion and election officials across America into an alternative universe of conspiracy theories causing grievous harm to Dominion and the country.

Today's settlement of $787,500,000 represents vindication and accountability. So we're going to call everyone back up and we're going to talk about what that settlement means. We'll be right back. And we're back, joined again with NPR's David Folkenflik and Colorado Public Radio's Benta Birkeland. Hello to you both. Hey. Hello. So David, this case, Fox News, was accused by Dominion of knowingly spreading baseless conspiracy theories about the company and its voting machines on Fox Network and all its platforms about the outcome of the 2020 election. So in this settlement, did Fox admit that they lied? In this settlement, Fox explicitly acknowledges that false claims were made

about the 2020 race. It's passive. You don't notice the, you know, the word Fox appearing in close proximity to the word false. And yet lawyers for Dominion say that this is a kind of accountability. And they can point to this as an acknowledgement that what was said was untrue. And that, you know, Fox said it was pleased to be able to find a way to avoid what would have been a divisive trial and that it hoped that this would help the nation kind of move on from this chapter, essentially a chapter that Fox helped to fan of these claims of fraud being committed in the 2020 presidential race that really inflamed much of Fox's viewership. But that Dominion would have found hard to prove that the damages they suffered were all directly related to Fox.

I think we've also got to acknowledge the amount of money involved is significant. Yeah. It's a huge amount. And we should note that they initially sued for $1.6 billion in damages. That's right. So they came out to this very sort of interesting number, $787.5 million. Why does that matter? Well, that's just a scoach, $12.5 million under $800 million, which would have been the halfway point to that damages. So Fox can say to itself and to its friends, its allies, even its viewers, this is less than half

of what Dominion asked. But by any definitions, it's an extraordinary amount of money. Even if with the billions of dollars of revenues and even billions of profits that Fox News tosses off every year for the Murdoch family and for its corporate parent, it's something that Fox can afford to pay. It's an extraordinary amount of money. And in many ways, I think not only the size of the settlement figure, but that the public disclosure of the settlement figure serves as another way of acknowledging the apology. That is, we did something really wrong if we had to pay this amount of money out. Benda, you've covered this case from Colorado where Dominion has its headquarters. Obviously, they didn't get the exact sum they were asking for, but they still got a tremendous

amount of money in the settlement. What were the alleged damages from the company's perspective? They commissioned a report and in court filings laid out about a billion dollars worth of damages. So that included $16 million in profits, more than $70 million in potential business, and then more than $900 million in value. And this was a tricky case from Dominion's perspective to prove that damage amount because they had to demonstrate that state and local governments were not using its equipment specifically because of lies and conspiracy theories and not other business factors. So they were trying to provide that information, laying that out to the court. But

NPR commissioned a study from a nonprofit called Verified Voting that tracks equipment vendors across the country for elections. And according to that data, Dominion had actually seen a net increase in the number of jurisdictions using its equipment since 2020. So there's a lot of nuance there because these contracts are hard to predict in the future. These vendors can stay with the jurisdiction for 10, 15 years potentially. But when I talked to a legal expert about this case, he said proving that $1.6 billion in court was definitely going to be a challenge for Dominion. Let's talk about impact here. David, earlier in the wonderful podcast that no longer is necessary because of the settlement.

I think we'll release those as like the underground tapes, right? The B-sides, right? Many, many brilliant points. But one of them was that this was one of the most closely watched media trials in decades. What do you think the impact of this settlement is on the media environment? Well, as a result of Fox settling, in a sense, it does the rest of the media a favor because there were concerns that if this worked its way up the courts and Fox had indicated that it would be willing to appeal this to the highest levels of the land. You have three Supreme Court justices, Justices Clarence Thomas, Neil Gorsuch, and even Justice Elena Kagan. In a footnote in a law review article she wrote about 30 years ago, indicated in different ways they'd be willing to take fresh looks at or perhaps

weaken the incredibly stringent protections afforded to the press in a 1964 Supreme Court ruling, setting the standards, a very high bar for defamation cases against media outlets, news organizations to succeed. And there's a concern among actually scholars as well that it may be just a little too tough to hold folks accountable. Defamation law is a rather blunt instrument to use to force a correction, which is really what Dominion sought here. And what Dominion instead gets. And, you know, what Dominion instead gets is a fairly spartan acknowledgement that statements made were false and a big payout that they can point to to anybody in the country to say Fox knows what it did was wrong.

But I have to note, David, I think disinformation about the election is still a real-time problem. You know, Donald Trump is still the frontrunner for the Republican nomination, still maintains falsely that the election was stolen from him. There is now a far-right ecosystem in which they still maintain on their platforms that the election was not above board or fraudulent. Do you think the impact of this could send to other media outlets,

look, you've got to be really careful about election disinformation because you could open yourself up to legal liability. Or is it status quo? Do you still think that people aren't as afraid because of the settlement? Well, I mean, Fox had to fork out a lot of money and Fox is in a relatively unique position as a media outlet, not the only one, but among the only ones that can afford to pay us some like this. So if you look at Newsmax or OANN, really much smaller mini-me's of Fox that are at times more extreme than Fox is, they've got to be concerned. They're

being sued by folks about very closely related lies. And I think, yeah, it will reign in certain kinds of actors that play on the national level, but may not have the deep pockets to say, how do we capture this audience without necessarily exceeding our ability to say, well, this is just rhetoric. We're not making factual claims. I want to say one thing that was interesting about this case. Because it wasn't appealed, it's not a precedent that obtains in any court perhaps other than the Delaware Superior Court. But the judge here said it's not good enough to claim we just neutrally reported what other people said and what those other people said turned out to be baseless and wrong and harmful and defamatory. But because there are people as

important as the then sitting president of the United States, we get the right to do that. Judge said that doesn't figure here. You don't get to wash your hands of this. You chose time and again to broadcast and rebroadcast such claims, even as your own reporters were telling you they weren't true. But I'm curious how you see either election voting companies or even, frankly, election workers have been watching this case because, you know, there was a lot at stake in these First Amendment questions and media questions, but lies about the election terrorized some of these workers at Dominion and even election workers around this country by people who believed that the election was fraudulent. I mean, real lives were affected by much of this misinformation. I think that's exactly right. This isn't a

theoretical issue. It has real world on the ground consequences. We have a former Dominion employee, Eric Coomer, who personally became a target of these conspiracy theories when he worked at Dominion. People falsely alleged that he personally caused votes to flip from Trump to Biden. He has his own defamation lawsuits in the works and And we'll see what happens there. But he had to go into hiding. He lost his job. His family was threatened. We've seen that from clerks and election workers across the country where they face threats. Colorado has also had what the state describes as insider election security threats. We had a county clerk try to prove voter fraud. She's facing felony charges and her trial is slated for August. So there's just so many repercussions and ramifications. And local

election officials have said there was a little bit of a lull after this last midterm election, but they expect it to ramp up. They're still dealing with lots of myths and disinformation. I think some people were hoping that there would be a trial and more of this could be aired out publicly because that could be used as a tool to fight disinformation because it's very rampant. And I think we will see it increase in this sphere of election denialism, especially as we lead up to the 2024 presidential election. All right, that's it for us today. David Fulkenflik in Wilmington, Delaware, and Benta Berkled of Colorado Public Radio, thank you both so much. You bet.

Thanks so much. I'm Susan Davis. I cover politics, and thank you for listening to the NPR Politics Podcast.