Fox News caves, and the real winner isn't Dominion — it's democracy and the rule of law

Don't feel disappointed by the end of the Fox News trial — it's a major victory for press freedom and democracy

Published April 19, 2023 6:14AM (EDT)

Attorney Davida Brook (second from left) of the legal team representing Dominion Voting Systems hugs her colleagues as she leaves the Leonard Williams Justice Center in Wilmington, Delaware, on April 18, 2023. (Alex Wong/Getty Images)
Attorney Davida Brook (second from left) of the legal team representing Dominion Voting Systems hugs her colleagues as she leaves the Leonard Williams Justice Center in Wilmington, Delaware, on April 18, 2023. (Alex Wong/Getty Images)

Fox News has caved. On Tuesday afternoon, its parent corporation settled the defamation lawsuit that Dominion Voting Systems had brought against the right-wing cable network for a reported sum of $787.5 million. That dollar amount, although less than half the $1.6 billion Dominion originally demanded, will clearly capture the headlines.

But as a former federal prosecutor concerned above all else with the strength of the rule of law and our constitutional order, three points stand out. 

  1. The rule of law stands taller now than it did on Tuesday morning. It rests upon accountability, and Dominion has achieved accountability for falsehoods perpetrated by a media outlet seeking profit over principle.
  2. In cases brought to court, facts and truth are what matter. Conspiracy theories fail.
  3. In the public square, publishing the truth requires a vibrant media protected by a vital First Amendment. Tuesday's capitulation by a ratings-driven cable channel reinforces both, as counterintuitive as that may seem.

Let's start there. If Fox had escaped accountability in this case, the damage to our democracy could have been irretrievable. Here's why.

America's free press operates today under the protection of the landmark 1964 Supreme Court case New York Times v. Sullivan. It is a bulwark of our freedom, and it's under constant attack from the right.

In Times v. Sullivan, the court erected a mile-high barrier against successful libel suits by public officials — which was later extended to "public figures" and large corporations like Dominion — who are criticized in the media. The court required such plaintiffs to establish "actual malice" on the part of the critic before they could prevail. In practice, this means a plaintiff must prove not only that a media outlet published false statements, but did so either knowingly or with reckless ignorance, having made no serious effort to determine the truth.

In the Times v. Sullivan opinion, Associate Justice William Brennan delivered a ringing endorsement of press freedom. Speaking for the unanimous court, he wrote of the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." Such debate, he reasoned, requires "breathing space to survive."

In other words, critics in the media need room to be wrong in order to take the risk of speaking truth to power. The free press has wide latitude to publish accusations about public figures and prominent institutions, so long as those charges are not knowingly or recklessly untrue. Without such breathing room, the truth dies and the oxygen of democracy is consumed by fear.

Tuesday's three-quarter-billion-dollar settlement means that Dominion surmounted that barrier in this case. It demonstrates that "actual malice" can still be proven in egregious circumstances, and that standard can keep critics honest.

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There is no way to exaggerate the importance of this victory in today's anti-democratic environment. The "actual malice" standard is under relentless assault from America's previous and would-be next president, Donald J. Trump.

And he's not alone. As recently as 10 months ago, Justice Clarence Thomas wrote in a dissenting opinion related to Coal Ridge Ministries Media v Southern Poverty Law Center that the high court should "revisit" Times v. Sullivan.

Translated from legalese to English, that means: Let's lower the wall that blocks libel suits by politicians and other public figures. It's too high for anyone to climb. The balance too strongly favors the press by making it virtually immune to legal action.

The Dominion settlement demonstrates that the standard of "actual malice" can keep the media honest. There's no way to exaggerate the importance of that victory.

This week the Dominion case has undermined that attack and strengthened some of our most important freedoms. You don't need to be James Madison to imagine the damage to freedom of the press if Donald Trump, Ron DeSantis or Jim Jordan could weaponize the negligence standard that right-wing judges like Thomas would prefer in the place of "actual malice." 

Indeed, one need only think of the ProPublica investigations published over the past week or so that compelled Justice Thomas himself to correct his past financial disclosure statements. Indeed, those articles might never have been published in the first place. The mere possibility of a viable threat can kill investigative journalism; investigations that don't happen leave important truths unspoken. Those kinds of silences erode and corrupt democracy.

That brings us back to points one and two. Dominion had the courage to put Times v. Sullivan to the test. As one of the company's lawyers said at its press conference on Tuesday, in the courtroom, "truth matters" and "lies have consequences," while conspiracy theories and "alternative facts" evaporate.

The rule of law and our judicial institutions did their work. Delaware Judge Eric Davis, a by-the-book jurist, held Fox's feet to the fire with a series of firm rulings, based on the evidence, that limited the network's path to any kind of victory.

Davis also appointed a special master to investigate whether Fox's lawyers had withheld damaging evidence from their adversaries and the court. He impaneled a jury of 12 ordinary citizens, and the trial that could have destroyed Fox's entire business was about to start. That was apparently quite enough for the network's legal team.

Anyone who feels disappointed that Dominion did not recover the full $1.6 billion its complaint demanded should understand that that number was invented for the purposes of negotiation. The sum Dominion has actually won, without taking a risk on an extended and unpredictable jury trial, amounts to nearly four times the company's value. That's a very big deal. 

But here's an even bigger deal: The system that protects our freedoms endures, even stronger than before. It will continue, as Dominion's lawyer put it, as long as the American majority continues to share "a commitment to the facts" and to our democratic institutions. That part is up to us.

By Dennis Aftergut

Dennis Aftergut, a former federal prosecutor, is currently of counsel to Lawyers Defending American Democracy.

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Commentary Defamation Dominion Voting Systems First Amendment Fox News Law Lawsuit