Today, Explained - What does the Fox pay?

Episode Date: April 19, 2023

$787.5 million. (To Dominion Voting Systems, averting a defamation trial that could have been disastrous for the network. The Washington Post’s Erik Wemple explains.) This episode was produced by Amanda Lewellyn and Victoria Chamberlin, edited by Matt Collette, fact-checked by Laura Bullard and Miles Bryan, engineered by Paul Robert Mounsey and Michael Raphael, and hosted by Noel King. Transcript at vox.com/todayexplained   Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

The truth matters. Lies have consequences. Fox News is going to pay $787.5 million to Dominion Voting Systems to settle a defamation lawsuit. Through the process of discovery in that suit, we learned that Fox didn't believe the lies it told about who won the 2020 election. It told them because it didn't want to lose its audience of Trump supporters. The terms of the settlement dictate that Fox won't have to cop to its lies, and Rupert Murdoch and other Fox grandees won't have to testify. But Fox is almost astonishingly facing another multi-billion dollar lawsuit by a different voting company on exactly the same grounds. Coming up on Today Explained, what happened and what's next for Fox News. The all-new FanDuel Sportsbook and Casino is bringing you more action than ever. Want more ways to follow your faves?

Check out our new player prop tracking with real-time notifications. Or how about more ways to customize your casino page with our new favorite and recently played games tabs. And to top it all off, quick and secure withdrawals. Get more everything with FanDuel Sportsbook and Casino. Gambling problem? Call 1-866-531-2600. Visit connectsontario.ca. It's Today Explained. I'm Noelle King. The Washington Post media critic Eric Wemple was there at the courthouse yesterday, like everyone else, expecting a trial to start soon.

They delayed the trial on Monday, a full day, because the parties were trying to settle. And then we got in there on Tuesday, and we were all expecting everything to go. And they finished selecting the jury on Tuesday morning. And then on Tuesday afternoon, we were all settled in for the opening statements. And we just kept waiting, waiting, waiting. And some people speculated that there were serious settlement discussions going on. Other people thought there might be a jury issue. But mainly, you just don't know. So then the judge came back after a long, two-hour absence and said, the parties have resolved the matter. And so we were off to the races trying to get statements and trying to figure out what happened. You know, there's only so much information that spills out

after something like this. Settlements are so often just shrouded in complete mystery. But at least in this case, we got a number. Let's go back to the beginning. Dominion accused Fox News of doing what exactly? This is a defamation case. Dominion accused Fox News of publishing falsehoods about its business and connected to the 2020 election. It said that Dominion basically participated in an election vote-rigging scheme to take a legitimately elected Donald Trump and turn him into Joe Biden. So the idea was that the Dominion technology was somehow rigged to flip votes in favor of Joe Biden. So the idea was that the Dominion technology was somehow rigged to flip votes in favor of Joe Biden. Welcome back. I'm back with Sidney Powell, who is part of President Trump's legal team in contesting this election. Sidney, we talked about the Dominion software. I know that there were voting irregularities. Tell me about that.

That's to put it mildly. The computer glitches could not and should not have happened at all. That is where the fraud took place, where they were flipping votes in the computer system or adding votes that did not exist. All of it was false. I imagine you were watching a lot of Fox News at the time, you know, for analysis reasons. Is there an example that springs to your mind? Like, I remember XX Fox personality saying a thing about Dominion. Like, is it memorable stuff? It's pretty memorable stuff. It was an issue at the time. This didn't, you know, the suit didn't

come out of nowhere. You know, this is a huge plume of defamatory statements that we're talking about here. There was a ton of conspiracy theorizing going on at the time. Fox picked up a significant amount of it, especially on their sort of junior varsity hosts. I mean, we're talking about Lou Dobbs, Jeanine Pirro, Maria Bartiromo. I think most Americans right now cannot believe what we're witnessing in this election. We have across almost every state, whether it's Dominion, EBS, whatever the company, voting machine company is, no one knows their ownership, has no idea what's going on in those servers, has no understanding of the software because it's proprietary. It is the most ludicrous, irresponsible, and rancid system.

And to a lesser extent, you know, the real marquee hosts like Sean Hannity and Tucker Carlson, this was really a tier two host problem at Fox News. You know, Lou Dobbs' show, I think, was responsible for like 11 or 12 of the defamatory statements in the case. But yeah, we knew about it at the time, yes. What does Fox News say to Dominion's accusations, allegations? What was their legal argument going to be? You know, boiled down to its essence, Fox News claimed that it was doing newsworthy work. In other words, that Trump,

he was the president of the United States. His lawyers, lawyers working for the president of the United States, were making arguments that the election was stolen. And therefore, what does a news organization do? Well, a news organization covers these allegations. So Fox News was basically making a newsworthy argument, protected by the First Amendment, covering the statements of the highest official in the land.

How could you possibly have a problem with that? That's journalism. It also claimed that it merely presented these things as allegations and not as sort of hardened fact. Okay, so this case goes to court and there's a process of discovery during which time some texts from Fox are uncovered, some statements from inside the company, emails, et cetera, et cetera. What did we learn in discovery? We learned everything in discovery. Discovery was a bombshell.

You know, by the time they had gotten the trial, Dominion identified 7,021 trial exhibits. We're talking about hundreds and hundreds and thousands of pages of discovery. It basically showed that Fox is a tremendously corrupt place where they take theories and craziness and unconfirmed contentions and wrap them into a narrative and basically lied to their viewers that there was some truth to this idea that President Trump had the election stolen from him. That's what we learned at its core from the discovery materials. There was further embarrassment for the network when, during the discovery process, it had to turn over text messages from Fox personalities like Tucker Carlson, Sean Hannity, and Laura Ingraham.

A notable example was a text from Carlson to an unidentified person that Fox News is, quote, very, very close to being able to ignore Trump most nights. I truly can't wait, close quote. He later said that he hates Trump passionately and, quote, I can't handle much more of this. They were texting each other all kinds of really candid opinions about this theory of stolen elections. It completely contradicted the sort of stuff that they were putting on the airwaves. On January 6th, Tucker texted a producer, he is a demonic force, a destroyer. So that's why at the end of the day, when the Dominion lawyers came out in front of the courthouse, They say there are consequences for lies. They were able to say lies because we see what the Fox people really believed and what the network was broadcasting.

Those two were completely incompatible. Today's settlement of $787,500,000 represents vindication and accountability. Lies have consequences. The question that I had for the Dominion people and that others did as well was, hey, did you, Dominion, demand any retractions or apologies or any sort of straightening out of the record that would have to occur on Fox News airwaves? So we really pressed them on that, and they just basically turned on their heel and walked away. They did not answer that question. I later reported, and several people reported, I believe it's pretty well established, that there are no requirements in the settlement agreement that Fox News publish a retraction or a correction or an apology. So that part did not

happen, and that is one of the reasons why you see some degree of disenchantment with this process. Disenchantment not only because the settlement prevents people like Sean Hannity and Tucker Carlson having to take the stand, but also the fact that Fox News viewers do not get front and center retraction of stuff they may have seen on their favorite cable channel. What are the terms of the settlement? If Dominion doesn't get an apology and an acknowledgement, what does it get? Well, it gets $787.5 million, which is about a little less than half of what Dominion demanded in the lawsuit. They demanded $1.6 billion. It's important to note that this settlement happened

just before opening statements. You know, there's some sort of significance to that, just in terms of wild speculation here. I know wild speculation is not a good idea when we're talking about this case, but I'm going to engage in it. Fox News' lawyer, I think, could not have wanted to give an open statement in this case because the judge in the case, in his summary judgment ruling, basically tossed out all kinds of defenses for Fox. Said that they couldn't argue that it was newsworthy as a matter of law because that's not a valid protection in New York state law under the First Amendment, whatever. You can't say it was newsworthy. That will not work as a matter of law, because that's not a valid protection in New York state law under the First Amendment, whatever. You can't say it was newsworthy. That will not work as a defense.

He determined also that they couldn't call it opinion, because as you may know, opinion has a wide berth under First Amendment law. If you're just riffing about what you feel, you really can't be busted for defamation. And he said you couldn't use other doctrines like the fair report doctrine, the neutral reporting privilege, so on and so forth. And he also said the judge ruled that the statements in question were clearly false. He used caps, all caps, to say crystal clear that these statements were false. And he said they were defamatory per se, which means that they subjected Dominion to ridicule and disfavor and so on and so forth. So there just wasn't that much that the Fox News guy could have said. I mean, he would have gotten up there and said, well is not actual malice, which is the First Amendment standard that Dominion has

to prove in order to prevail in a case like this, because they're viewed as in the category of public figures. That was never officially ruled on in the case, but they were operating under the actual malice standard. So what Dominion gets is $787.5 million. Does Fox News have $787.5 million? Yes. Huh. The answer is yes. Fox News is an enormously profitable, the main profit driver behind Fox Corp, which is the parent company, which was also named as a defendant in the suit. There was initially a separate suit against Fox Corp, but they were consolidated. Fox Corp, I believe, has like $4.1 billion on hand, according to the New York Times. And I won't say that Fox will have an easy time paying it, you know, $787

million is a large sum. But the answer is yes. How damaging in the end is this for Fox News, do you think? It's minimally damaging for Fox News. But I will say that the discovery materials and the tremendous amount of negative publicity for Fox over the past two months is a moment of accountability and transparency that Fox has rarely, if ever, seen. And that's important in itself. Coming up after the break, 12 years into covering Fox News, Eric Wemple shares his grand unified theory of what has made Fox work and why that makes this ruling so consequential. You're not going to want to miss it. ស្រូវនប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ប់ Support for Today Explained comes from Aura. Aura believes that sharing pictures is a great way to keep up with family,

and Aura says it's never been easier thanks to their digital picture frames. They were named the number one digital photo frame by Wirecutter. Aura frames make it easy to share unlimited photos and videos directly from your phone to the frame. When you give an aura frame as a gift, you can personalize it, you can preload it with a thoughtful message, maybe your favorite photos. Our colleague Andrew tried an aura frame for himself. So setup was super simple. In my case, we were celebrating my grandmother's birthday. And she's very fortunate. She's got 10 grandkids. And so we wanted to surprise her with the AuraFrame. And because she's a little

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He was there at the courthouse yesterday. And Eric, you said earlier that Fox News denied the charges against it. Why would it then settle with Dominion instead of just keep on denying? Well, Fox News has a terrible case, and this particular case exposed them as liars. I don't know how many people have gotten through the entire thing, but every day I was continuing to read and read and read and read and read more of these filings, more of these exhibits. It is astounding how much fraud and journalistic corruption there is. Just in this one news story, pretty much, we're talking about discovering materials relating to several weeks,

couple months, maybe a few months in some cases. And it's just astounding how much lying and how much avoiding the truth there is. And there'll be a lot of people, as I mentioned earlier, that are disenchanted with this settlement. But this record is around forever. It never goes away. What did Fox News avoid by settling? I mean, this case in the newspapers, on TV, it was framed as like potentially one of the most consequential media cases in history. We thought we were going to hear from Rupert Murdoch. What did Fox avoid with this settlement? The trial would have been grueling. The trial also would have been tremendously, I think, clarifying about how Fox News does its business. It's already been clarifying to a great

extent, but it would have just been that on kind of on rocket boosters over its business. It's already been clarifying to a great extent, but it would have just been that kind of on rocket boosters over several weeks. It was expected to last for six weeks. And who were we expected to hear from? Who was going to testify or have to testify? Well, one way or another, all the major people that you can ever identify at Fox News, Tucker Carlson, Sean Hannity,

Rupert Murdoch, on down through Jeanine Pirro, Lou Dobbs, Maria Bartiromo. But Fox did avoid more of that. And they did avoid also the risk that the jury was just going to call, would be overwhelmed. That was, I think, Fox's primary concern, was the jury would just be overwhelmed with how much evidence there is here and just throw the book at them in every possible way and choose the biggest possible number. You know, they were going to discuss punitive damages. There's a lot to discuss about the various buckets of damages that were at stake in this trial. And damages is an impossible topic for a non-lawyer ever to explain. But, you know, there was this, there was a tremendous risk. Fox News

knew that they had a terrible wheelbarrow load full of adverse facts. And one thing I'd like to point out is that the last famous defamation trial that we have was Sarah Palin versus New York Times. Tell the truth. It's as simple as that. That was in February of 2022. I covered that trial, went up there, listened in on the audio line, so on and so forth for every step of the way. Recall that she was suing over one editorial and basically two or three sentences of content. Dominion was suing over several weeks of nonstop broadcasting about the possibility or the allegation that Dominion was involved in a vote flipping scheme.

So if we're talking about sheer dimensions and volume, there is really no comparison to what we just went through. Tell me about the other lawsuit that Fox is facing, the Smartmatic lawsuit. The suit alleges they defamed the company by inventing a story that the election was stolen from Trump and decided to make Smartmatic the, quote, villain. Yeah, I mean, the Smartmatic lawsuit is $2.7 billion that Smartmatic is looking for. Smartmatic is basically a voting technology company. It had a smaller footprint in the 2020 election than did Dominion. It worked only in LA County, and it has filed an enormous lawsuit against Fox News that carries many of the same points and arguments that Dominion did.

The main difference, I think, here is that Smartmatic may have even a greater case, since their footprint on the 2020 election was so much smaller. Whereas Dominion had technology and machines or some sort of contracts in more than 20 states, maybe as many as 28 states. Smartmatic was only under contract in Los Angeles County during the 2020 election. So the idea that it was playing this big fraudulent role in flipping America's elections is just even more insane with Smartmatic. But, you know, and this gets back to my core theory, which will never fully be either disproven or proven. So it's basically speculation again.

But I'm happy to run through it just because this, I think, does explain a lot of the record. Are you ready? Yeah, hit me. Okay, so for years, Fox News has basically used the generous media protections in the United States as part of a business model. So it has been able to smear people like Hillary Clinton, George Soros, Barack Obama, basically all kinds of liberal prosecutors, whoever happens to be on the liberal side of American politics at any given point.

False storylines that omit important facts. And they've been foisting this crap on their viewers for a really long time and skating on the legal end because they have an enormous protection. They're constantly dealing with public figures and public figures under actual malice have to prove a hell of a lot in order to bring a meritorious defamation claim. So my theory is that Fox News has internalized that, that we don't really ever need to worry about the collateral damage and the possibility that people we talk about will ever sue us. What they were doing here was they were taking the false narrative of the day, which was election fraud. That was the false narrative of

the day that they needed to addle their viewership. And it's not apparent that they ever really fully considered the consequences for Dominion or Smartmatic because I think that they didn't believe that they were subject to litigation of this sort, headline-making litigation. And the reason I believe that is because if you look through all the papers and the evidence and so on and so forth, there's little particularized malice or ill will toward Dominion. No one is really saying, I hate those a**holes at Dominion. We finally got our chance at them, you know. This is our chance to do the Dominion story. There's nothing like that.

It's just Dominion was just wrapped, embedded in this narrative that they wanted to promote. If Fox has been operating all these years thinking, we don't really have to worry about it. Does this settlement tell us, no, actually, the stakes have changed? Things have changed. Fox has said throughout, you know, this case could have grave consequences for all of media. And it seemed to mean media like Fox. But ultimately, it feels like, yeah, Fox is right. It does have consequences for media. You can't go around lying about people the way you've been doing, as you just said, for years and years and years. Now you got to think

about lawsuits if you plan to do that. I'm very happy that you landed on that point because I'm very happy that you landed on that point, because I'm really pissed about the way Fox News has defended this, not only in court, but in their public relations statements, which is framing it as a matter of the First Amendment. Like, this is not a First Amendment sort of like stand up for the First Amendment moment. It really isn't. The First Amendment does not protect certain things. And the judge was very forceful in his pronouncements from the bench on this. There are significant limitations to what you can do under the First Amendment. And, you know, the cliched ones that we constantly trade in, you know, just in talking about it is, you know, yelling fire, falsely yelling fire in a crowded

theater, or, you you know making a threat to somebody like i'm going to kill you um you know stuff like that is not protected another thing that is not protected is knowingly spreading false and damaging statements about someone and that is a real problem right like fox news trying to wrap itself in the First Amendment when what it had done was never protected by the First Amendment and really is not a problem for our continued freedom under the First Amendment. In other words, the consequences, the legal consequences of doing this in no way, in no way weakens our country's First Amendment protections. They remain intact. The First Amendment doesn't mean anything if something like this goes without consequences.

Because then you can just lie. You can just lie and damage people's lives. And what kind of society do we have then? You know, it's just not a good place to live. And if there are consequences for media, those consequences rest squarely and exclusively at Fox News. Eric Wemple, media critic, Washington Post.

Amanda Llewellyn and Victoria Chamberlain produced today's show. Matthew Collette edited. Paul Robert Mouncey and Michael Rayfield engineered. And Laura Bullard and Miles Bryan fact-checked. I asked the questions. I'm Noelle King. It's Today Explained. Thank you.