What A Day - The Defamation Trial That Never Was

Episode Date: April 19, 2023

The defamation trial brought by Dominion Voting Systems against Fox News was called off after both parties agreed to settle for $787.5 million at the last minute. Crooked news contributor Max Fisher joins us to break down what happened and what comes next.And in headlines: The white homeowner who shot 16-year-old Ralph Yarl turned himself in to Missouri authorities, a Russian judge ruled that Wall Street Journal reporter Evan Gershkovich must remain in pretrial detention, and Nebraska lawmakers passed the first bill in their 90-day legislative session. Show Notes:What A Day – YouTube – https://www.youtube.com/@whatadaypodcastCrooked Coffee is officially here. Our first blend, What A Morning, is available in medium and dark roasts. Wake up with your own bag at crooked.com/coffeeFollow us on Instagram –https://www.instagram.com/crookedmedia/For a transcript of this episode, please visit crooked.com/whataday

it's wednesday april 19th i'm priyanka arabindi and i'm juanita toliver and this is what a day where we are busy comprehending this flurry of new celebrity couples yeah timothy chalamet and kylie jenner bill hater and ali wong sean mendez and camille cabello part two. I don't know. All these, I'm not into it. I don't, I can't tell you I'm into it at all. Keep doing you, rich people. Rich celebrities do what they want. On today's show, the 84-year-old white man who shot Ralph Yarl, a black teenager, has turned himself in to authorities in Kansas City, Missouri,

a day after he was charged with first-degree assault and armed action. Plus, life goes on on the Great Pacific garbage patch. But first, the Dominion Fox trial ground to a halt yesterday before we even heard opening statements when the two parties reached an agreement

and settled on a $787.5 million payout from Fox with no apology on air, which in my mind means that Fox kind of won and our democracy lost. Before we dig into the details of this settlement, let's do a little bit of a refresher. Back in 2021, Dominion voting system sued Fox for $1.6 billion for spreading lies about the 2020 election and blaming Dominion voting machines for malfunctioning, which was a bold-faced lie. In recent weeks, text messages and internal emails and conversations from Fox showed that executives and on-air talent knew the lies were exactly that, and they broadcast them anyway, along with featuring primary perpetrators of those

lies on air, namely Rudy Giuliani and Sidney Powell. Fast forward to April 2023, and just as the jury was set and sworn in, Fox narrowly avoided having all of their dirty laundry aired by reaching a settlement with Dominion. As I mentioned before, the terms are steep. In fact, this is the largest known settlement in a U.S. defamation case. But they're still pretty amicable for Fox considering what a jury could have ordered them to pay and apologize for. After the settlement was announced, Fox released a statement that read in part, quote, We are pleased to have reached a settlement of our dispute with Dominion Voting Systems. We acknowledge the court's rulings finding certain claims about Dominion to be false. Insert a massive side eye because that was not an admission of guilt. That was not

any bit of accountability or taking responsibility. Seriously, I missed even the apology for lying so blatantly about this company and this election. It really is like Juanita, you and I have been sitting here being infuriated. It really is infuriating. Like picture flames in our hair. That's the visual people. That's how heated we are. Yeah. Dominion CEO, John Polis,

held a press conference outside of the courthouse in which he celebrated the settlement. Take a listen. Fox has admitted to telling lies about Dominion that caused enormous damage to my company, our employees, and the customers that we serve. One of Dominion's lawyers, Stephen Shackelford, also spoke and had this to say. Money is accountability. And we got that today from Fox. But we're not done yet. We've got some other people who have some accountability coming towards them.

And I'm very proud of the team from Sussman Godfrey that has worked tirelessly for this case. And we'll move right on to the next one. OK, money just absolutely not the same as accountability. No, that's just false, but also very much underscores something that we're going to get into very shortly. Just about how corporate like this this whole case is like it really is the truth of the matter here and like while we think we're talking about you know election lies the big lie whatnot like it really this whole thing is rooted in these corporations and and their bottom lines and that's why we're here and it

sets the tone for all of it i i feel like we should be playing cash rules everything around me. Cream is the money by Wu-Tang Clan because it's all about the money. So naturally, we have tons of reactions to all of this breaking news. And we had a chance to talk with Crooked News contributor Max Fisher to break all of it down. Max, welcome back to WOD. Hey, pals. Back so soon. Truly. Quicker than I thought you'd be back, but we are always happy to have you. Let's jump right into these questions. This trial was set to start yesterday, and it was expected to last six whole weeks. But it was called off just hours after the jury was selected because at the last minute, both parties agreed to settle. So what can you tell

us about what happened in the courtroom and what do we know about the settlement? So the settlement is big. It is seven hundred and eighty seven and one half million dollars, which is a lot. It is, depending on how you count it, the largest settlement ever that has been publicly revealed in a media defamation case, which, of course, like we talked about, incredibly hard to successfully prove defamation against the media. There's one that's arguably higher against Alex Jones for $1.4 billion, but that's only if you count Alex Jones as a journalist, which I do not personally. By comparison, one of the next largest, biggest ones was for only $177 million against ABC News. So like way less than a quarter.

So it's really, really big. It's huge as a share of Fox News's earnings. It's way more than they made the last quarter of last year. So this is a really big damage for them. It does not include them having to apologize on air. And it also, of course, this is the value to Fox News, gets them out of having to go through with the trial. So we don't know exactly what happened was the maneuvering at the last second that led them to put off settling for so long and then all of a sudden to do it. But Dominion got what they were looking for, it seems like. So prior to yesterday, though, there were reports that settlement talks were going nowhere, actually. And we know Dominion officials did

previously say they wanted that on-air apology, which now we know they're not getting. I'm looking at that like a major win for Fox. But knowing that Dominion caved in the settlement without that apology, knowing that there is a payout for Fox, what do you make of that weak statement that we did get from Fox?

And the reality that the people can't be sure that Fox won't ever blatantly lie at this scale again? So this trial has always felt to me and I think it's felt to a lot of us who are following it closely, like it would be a vehicle for public accountability, public accountability for Fox News's role in perpetuating the big lie about election fraud, in inciting the January 6th insurrection. That part, because I think that's getting lost in the conversation. Their coverage explicitly riled up additional folks along with, of course, Trump's rhetoric. The reason that it's getting lost in the conversation is that it was actually, that was never what this trial was about. Even though that was what it felt to us like it was

about, this was always just about corporate damages for a, by comparison, pretty small voting machine company. And I think we kind of wanted them to be the like white knight hero crusading for American democracy and the American people. And I think they did like meaningfully this case has advanced that. But the reason that that wasn't front and center is because that was never what this was about. What about Dominion? You know, what have they had to say about this settlement? good case here. And they have, of course, a bunch of other defamation suits that are already in progress against other people over the same election lie. So I think that they're thinking about getting the best deal for their interests out of Fox News, and they appear to feel that they got that and also positioning for these other trials to show like, look, we can get a lot of money for this lawsuit for these defamation charges, so you better pay up. Another stark reminder that this is a business, man. Like, that's exactly what I'm gleaning from this.

And I know you said that this amount is massive for Fox, but let's be real. They're still going to make money hand over fist. Their viewership is not leaving them anytime soon. Well, that was the problem is their viewership was leaving them. That was what came out in all of this discovery is that they initially said, and we know from these emails, they said, we are not going to follow Trump on the big lie. We're not going to follow Trump on him lying about the elections. And then they started losing viewers in big numbers to Newsmax, to One America News. And they said, you really see, they did this out of fear.

This wasn't a like, we're so excited to do this. They thought, oh my God, we're losing viewers. We have to do it. And now what this does is it sets up incentives or disincentives, I should say, to say, okay, you thought that losing viewers to Newsmax was bad. How about if you tell a lie on camera a few times, you might have to pay $800 million, which is more than you make in like seven months. The hope or the thing that we can hope for, because I don't want to be too pessimistic about it, is that Fox is still Fox. Fox is still going to Fox. It's

still going to be Tucker Carlson on air tomorrow, and he's still going to be him. But the executives behind the scenes are going to have to know in the back of their heads, if we lie explicitly in a way that damages a company's bottom line, we could have to pay way more than will be worth it. So the trial that wasn't meant to be was still highly anticipated because I was ready to buckle up for the full six weeks. I know a lot of people were. We talked about how this settlement doesn't match the sentiment of what people wanted, but it would have had significant implications on the First Amendment and the media landscape as a whole. So what kind of message does the settlement send when it comes to accountability and consequences for knowingly spreading

disinformation? Because in my mind, a money payment is not accountability. We talked about just a little bit about the fact that, sure, they were losing some viewers and that motivated their lying. But for me, it's like I think media outlets still have a cost benefit analysis to make. So now that Fox isn't airing their dirty laundry, what do you make of this settlement? So, I mean, I take your point, but the outcome of the case was always going to be financial damages, right? Like nobody was going to go to jail over their role in these Dominion lies. It was always

just going to be a question of how much do they have to pay up. The thing that we lost in terms of accountability was the five or the six weeks of the trial, of people having to go on the stand, of it being in the headlines, in the news, of reminding people over and over again that Fox did this lying. I agree that we have lost out on that, but I think that we also got a pretty good share of what we would have gotten overall of that public reckoning if the trial had gone forward. And also, this is not the last trial. Fox is facing a separate suit from Smartmatic for $2.6 billion over basically the same charge over basically the same lies. Now, I am sure that Fox will do everything in their power to settle that one too. But maybe Smartmatic will see, boy, Dominion did really well by at least

pushing to discovery and by at least pushing up to the trial date. So maybe we can do well there too. I don't love that all of this is around like corporate financial incentives. But in this case, at least like maybe capitalism can work for us. Hmm. What a what a thought. What a thought there. You guys didn't like that one, huh? I'm just gonna pause. You know, I need to absorb that one. Okay, Max. Take us a little too hot, huh? Yeah, yeah. You tried it out here, though. And and we'll let it marinate for a minute. But what happens now, you know, and what lies in the future of these defamation cases,

including Dominion's other lawsuits, as well as, you know, you hinted at the Smartmatics lawsuit against Fox as well. Do you think that will go in the same direction this has? So the fact that the settlement was so big and the fact that the number was public, which is they're not usually, usually these numbers are secret and Dominion had to negotiate as part of the settlement. You have to let us reveal this number publicly. The fact that that is out there, I think does shift the landscape, not hugely, but a little bit in terms of media defamation and people's expectations and lawyers' expectations, frankly, for how possible is it to successfully sue a news agency for deliberately lying? How

hard is it to prove it? How hard is it to get a really big settlement? And I think that this will raise a lot of eyebrows for lawyers who are looking for big settlements. Maybe it will raise eyebrows for people who have been lied about by news agencies. My fear a little bit is that it's possible that companies that want to preempt or squash legitimate news coverage might say, look at this Dominion case. They got $800 million for proving actual malice. So maybe you shouldn't run your story about our shading dealings because maybe we can get that amount too. So that is something that we are going to like learn over the coming years. Like has this changed the landscape? This story is still very much ongoing. Max, thank you so much for joining us again. We're so sad that we didn't get to have six

weeks of having you on, but hopefully for something else. Thanks, pals. That was our conversation with Crooked News contributor Max Fisher. And while this settlement left a lot to be desired for me, at least, you better believe we will bring you all of the details about the other cases against Fox as they progress. That's the latest for now. Let's get to some headlines. Headlines. Andrew Lester, the white homeowner who shot 16-year-old Ralph Yarl last week in Kansas City, Missouri, turned himself in to authorities yesterday after being charged with first-degree

assault and armed action. As we talked about on the show yesterday, Yarl, a black teenager, was shot twice by Lester after he mistakenly rang the wrong doorbell. He was hospitalized over the weekend with life-threatening injuries and was released on Sunday. His mother, Cleo Nagby, told CBS Mornings yesterday that her son is doing considerably well and he is, quote, able to communicate, mostly when he feels like it but

mostly he just sits there and stares and the buckets of tears just roll down his eyes it's heartbreaking it really is to even think about this young boy it's so it's it's sickening and the fact that he's gonna live with these scars, not just physically, but mentally and emotionally for the rest of his life, like his whole life trajectory has been changed as a result of this violence he faced for ringing the wrong doorbell. But students from his high school, Staley High School, have his back. They walked out of school yesterday in support of their classmate. And I'm going to need more of that energy as we continue the debate about guns in this country. Seriously. I'm going to need more of that energy as we continue the debate about guns in this country. Seriously, Lester is set to be arraigned this afternoon,

and if convicted, he could face life in prison. A Russian judge ruled yesterday that Wall Street Journal reporter Evan Gerskovich must remain in pretrial detention, weakening hopes that he'll be released anytime soon. To get you up to speed, Gershkovich was arrested by Russian authorities while on a reporting trip late last month and was charged with espionage. His detainment marks the first time an American journalist has been imprisoned in Russia on allegations of spying since the Cold War. Gershkovich and the Wall Street Journal deny the allegations. And last week, the U.S. State Department officially designated Gershkovich as

wrongfully detained. The U.S. ambassador to Russia who was present during Gershkovich's hearing yesterday told reporters that Gershkovich is in good health and spirits behind bars. And she reiterated that the accusations against him are, quote, baseless. Gershkovich's legal team says it will keep appealing this case until his next court date on May 29th, when Russian prosecutors will decide whether or not to extend his detention. Gerskovich currently faces up to 20 years in prison. My goodness. Yeah, seriously, how many times are they going to do this? Just like snap up these these innocent people, these innocent Americans and imprison them and like ask for crazy shit in return. It is, it's very upsetting. It's very infuriating. Nebraska lawmakers yesterday passed the first

bill in their 90 day legislative session. Typically the one chamber legislature would have passed dozens of bills by now, but progressive lawmakers have been filibustering every single bill that has come before the body in an effort to block proposals that would ban gender-affirming care for trans youth in the state. The movement started earlier in the session when Senator Michaela Kavanaugh vowed to filibuster every bill that comes to the floor for debate, even the ones that she likes, and other lawmakers joined in shortly after. To get an idea of just how effective their strategy is, as of now, there

are over 200 bills that were proposed in this legislative session that haven't even made it to their first round of debate. And with only 25 days left in the session, it's not looking like they ever will. The loan bill that passed yesterday was a liquor taxation measure that had the support of every lawmaker in the legislature, including Kavanaugh, but Kavanaugh kept her promise and kept that bill from passing for nearly six weeks. Look, Michaela Kavanaugh is the only Kavanaugh I will ever celebrate. Shout out to you for fighting

for all of the people who need you. And finally, an environmental story that's less doom and gloom and more smiling through the tears. Scientists have examined samples from the notorious Great Pacific Garbage Patch, a massive floating swirl of accumulated trash that exists in the ocean between California and Hawaii and is reportedly twice the size of, get this, Texas. Yikes. Their findings reveal that complex ecosystems of coastal creatures have begun to colonize and thrive at sea on top of the floating garbage thousands of miles from their coastal homes.

Legions of tiny crabs and sea anemones have hitched a ride on the 620,000 square mile trash accumulation. In a study published this week in the Nature Ecology and Evolution Journal, a team of researchers found that 46 different species have been able to survive and reproduce in these strange conditions, a majority of which has been traced to waste from commercial fishing. And while ideally there wouldn't be a monstrous patch of plastic in our ocean, we're happy that these little creatures are finding a weird new life out there. It's a brave new world out in the middle of the ocean. Truly, one man's trash is all of these little creatures is, I don't know, home all they've ever known. And I love that for them, I think.

I still don't think I like the idea of like a shit ton of plastic just like floating around there bigger than like, I don't know, one of the largest states in our country. But yeah, I'm having a dark thought moment, though. Is this our future? Like dead ass when the land gets submerged in water, like are we going to be living on plastic with the anemones? I was going in another direction. I was going to say like, in a sense, like, aren't we all just like living on a trash? But I feel like we're like there's there's some aren't we all just like living on a mountain of trash?

But I feel like we're like there's some connection between our thoughts. I like it. I think we're both heading in the same direction. Dark. And those are the headlines. We'll be back after some ads. It's Wednesday, Wild Squad, and for today's Temp Check, we are talking about National Treasure 3, Fence of Illusions. A security alarm was triggered on the North Lawn at the White House Tuesday after a toddler successfully breached the 13-foot retaining fence surrounding the property. The small child had apparently wriggled through one of the five and a half inch spaces

between the posts. This baby's day out came to an end shortly thereafter when responding Secret Service officers reunited the child with his nearby parents, letting them go on with their day after a short interrogation that I can only imagine started with, where the hell were you when your baby squeezed through this fence? This marks the first successful intrusion of the White House lawn since the government constructed a higher, more secure fence in 2021 following a series of security threats.

Who knows what will happen after this. But Juanita, I have to ask you, was this an honest mistake by a young toddler or are highly trained baby spies looking to infiltrate the American government by any means

necessary. What do we think? I promise you that baby knew exactly what they were doing. You've seen Boss Baby. You know what's up. They are trying to go for global domination. So that's my stance. But also that kid was super cute. And I want more of this. This makes me feel good after a very shitty day of news. Priyanka, what do you think? That's true. This does make me feel good, even though the like the parents absence during this is not quite unsettling. But like I've also been brainwashed by enough scandal to be like, is this some B613 shit? Like, is that what's happening here? I don't know. But like, I just if you're Joe Biden, I'm sleeping with one eye open tonight. I'm like, uh, these babies not safe. And just like that, we have checked our temps.

It's good. It's getting up there a little bit. We're a little nervous. One more thing before we go. If you're looking for a new binge worthy podcast to add to your queue, look no further than Stiffed, the eight-part series from Crooked Media and iHeartRadio. Host Jennifer Ramelini takes you on a wild ride through the rise and fall of Viva, the erotic magazine for women that rocked the publishing world in 1973 New York City. With the team of feminist writers and editors behind it, Viva in its original form had everything from full frontal male nudity to a fashion section run by none other than Anna Wintour. But with Porn King publisher Bob Guccione at the helm, were they always destined for failure?

Find out now by listening to the first half of Stiffed, available for free on your favorite podcast platforms. Don't miss out on this podcast. That is all for today. If you like the show, make sure you subscribe, leave a review, colonize some sea garbage, and tell your friends to listen. And if you're into reading and not just the latest output from random celebrity couple generator like me, What A Day is also a nightly newsletter. Check it out and subscribe at crooked.com slash subscribe. I'm Juanita Tolliver. I'm Priyanka Arabindi. Let that baby into the Oval Office. You know, break some statues and shit.

You know Joe Biden would love that kid. Like Joe Biden, I'm sure heard of this and was like, you didn't send that kid straight to me? I don't know. What a Day is a production of Crooked Media. It's recorded and mixed by Bill Lance. Our producers are Itzy Quintanilla and Raven Yamamoto. Jossie Kaufman is our head writer. And our executive producer is Lito Martinez. Our theme music is by Colin Gillyard and Kashaka.