The Dominion v Fox litigation highlights the vital importance of America’s civil justice system and is a blueprint for what lawyers and parties should and shouldn’t do going forward.
Every first-year law student knows that the primary purpose of the tort system is to compensate those wronged by others.
From that standpoint, this litigation succeeded. Fox will pay $787 million, which, while higher than Dominion’s alleged damages, appears to compensate Dominion handsomely.
The second traditional purpose of the tort system is to deter wrongdoing by the defendant and others. Here, while we can’t know for sure, this enormous payment appears likely to make Fox and other media more careful not to let ratings overwhelm the truth.
Two equally important societal values are implicated by this litigation: public disclosure and remediation. Here, the scorecard is mixed.
This lawsuit was successful in informing the public that Fox, through its on-air talent and guests, lied to the public about voter fraud in the 2020 election. Reams of contemporaneous emails demonstrate that Fox knew what they were reporting was wrong and that they were doing it for money through ratings.
Election denial is a pernicious threat to democracy. Our republic is safer because this lawsuit exposed the truth — that the election was decided fairly and those who sought to overturn it — and their media enablers — are frauds who should not be trusted with power going forward.
This civil litigation provides a powerful bookend to the criminal justice system, where those who sought to overturn the election by force are being prosecuted, convicted, and imprisoned.
But the settlement is also unsatisfactory. By accepting lots of money and dismissing their case, Dominion denied America the incalculable value of the public testimony of Fox on-air and executive leadership in the crucible of cross-examination.
The emails and deposition transcripts are useful but not as useful as what would have played out in public. We needed to hear what these folks had to say in their own defense and the withering questioning and additional admissions that very likely would have followed. Pre-trial discovery is a preface; the trial is the story, and now that story won’t be fully told.
So too, does the settlement language negotiated by Dominion from Fox fall far short.
In settling, Fox says, “We acknowledge the Court’s rulings finding certain claims about Dominion to be false.” Dominion’s CEO says, “Fox has admitted to telling lies about Dominion that caused enormous damage to my company…”
Dominion is wrong. Fox did not admit to telling lies. Fox did not admit to causing damage to Dominion.
Perhaps Dominion could have wrested such admissions from Fox if they’d been willing to accept less money in a settlement. And perhaps they could have extracted such admissions from Fox on the witness stand.
But ultimately, Dominion took the money and walked away. Sure, Dominion says the money speaks volumes, and yes, it does, but Fox gets to say they made a business decision for the good of the company.
In something as important as the integrity of the 2020 election, we are ill-served for Fox to get away with the meaningless acknowledgment that someone else says Fox made some unspecified mistakes.
Dominion also failed at another appropriate goal of the tort system: remediation.
Enriching Dominion does nothing for the rest of us. Where’s the full-throated admission of wrongdoing? Where’s the agreement to fire or suspend the purveyors of bull? Where’s the firing or resignation of corporate executives? Where are the policy changes? Nowhere, and we are poorer for it.
Those of us who advocate for our clients in high-profile civil cases have a responsibility to urge our clients to seriously consider demanding remediation as a condition of settlement.
Yes, that may cost our clients some money, but that option should be squarely faced by the plaintiff, and the consequences of taking the dough and walking away must be weighed. The public should be critical of the plaintiff who sacrifices the public good at the altar of profit.
Sure, Fox is disgraced, but Dominion is not bathed in glory.
Shanin Specter is a founding partner of Kline & Specter and a law professor. [email protected]