Dear Reader,

Dominion Voting Systems did everything they set out to do, and more. They got paid. (I mean: wow, did they get paid.) And they imposed meaningful accountability on Fox News, even if they didn’t quite actualize the fever dreams of those hoping the judge would sentence Sean Hannity to serve seven years as Dominion’s in-house butler. 

Earlier this week, just moments before opening statements in a Delaware court, Fox agreed to pay Dominion $787.5 million to settle the claim that Fox had defamed them by spreading lies about fraud in the 2020 presidential election.

A cynic might look at this payment and fret that it was less than half of Dominion’s claim in its complaint that it was due $1.6 billion. But let’s be realistic about those numbers that plaintiffs throw out: they’re just that, dollar figures that plaintiffs conjure and then posit, aspirationally. There’s virtually no science or principle to it. If Dominion had claimed $600 million, or $2.6 billion, would anyone have noticed, or scoffed, either way? As one indicator of the fluidity of these claims, Dominion casually shifted $600 million of its own damages estimate, essentially on a whim. Dominion originally claimed it had sustained $1 billion in reputational damages plus $600 million in lost profits. But right before trial, they abandoned the entire lost profits claim – all $600 million of it – and re-categorized it as reputational loss. Whoops, pardon us while we just slide over half a billion dollars from column A to column B. I’m not saying plaintiffs’ numbers are fabricated. I am saying these numbers are optimistic dart-tosses, and not much more. 

Some might worry that Fox will just dash off the check and move on making cash, unbothered. And that’s essentially what will happen. But we live in reality. Fox was never going to go bankrupt as a result of this case, or ten more like it. But a $787.5 million loss isn’t nothing. Fox reportedly makes about $2 billion in profits each year. Fox will survive this outlay, but losing nearly half your annual profits in one shot? That stings.

Fox isn’t done paying out just yet. They face another defamation lawsuit from a different voting company, Smartmatic (which claims $2.7 billion in losses but, again – these numbers are generally pulled from thin air). I can’t see a scenario where Fox pays so much money to Dominion to avoid trial and then refuses to pay up to Smartmatic, landing itself right back at the defendant’s table. Smartmatic and its lawyers must have sprained their wrists high-fiving over the Fox-Dominion settlement. They’re gonna get paid next, and a lot. 

Even Fox’s payout to Dominion, standing alone, is essentially unprecedented. The largest prior publicly-known defamation payouts were worth a fraction of the Fox settlement. For example, ABC News paid over $177 million to a food manufacturer over its faulty reporting on a ground beef factory. (We’ve seen other semi-recent defamation settlements in the $200 million range, on the high end.) Even if we look at jury verdicts for defamation plaintiffs, I’ve only seen one number higher than $787.5 million –  last year’s verdicts totaling over $1 billion against the maniacal villain Alex Jones. But that verdict is to be split among nearly 20 plaintiffs, and Jones likely doesn’t have and never will pay much of it. Here, Fox will have to cut a check to Dominion for the whole amount. 

Keep in mind: the plaintiff in this case is Dominion Voting Systems, Incorporated. They are, at bottom, a corporation. It’s not Dominion’s job to exact vengeance or to enforce journalistic standards. It’s their job to protect their owners, their employees, and their own bottom line. Dominion filed this lawsuit. They put themselves at risk. They paid the lawyers, they slogged through discovery and litigation, and they won key pre-trial rulings. Now, Dominion — nobody else — gets to decide what’s best for Dominion. 

Dominion made a perfectly sensible calculation here. For one thing, as strong as their case was against Fox, no trial verdict is ever guaranteed. Draw one juror who’s a Fox News fan and you don’t get the verdict. Even if you give Dominion, say, a 90% chance of winning at trial, there’s still a substantial, built-in, catastrophic risk of losing. And even if Dominion had won a verdict, there’s zero guarantee they’d have received all $1.6 billion they sought in their complaint. In fact, by its own valuations, Dominion is worth less than $100 million. Would a jury award Dominion the entire value of its company in damages? Maybe. Maybe even double or triple. But I doubt that even a jury that found for the plaintiff would come back with a number as high as $787.5 million. 

Remember that, while Dominion stood toe-to-toe with Fox, slugged it out, and kicked their ass – Dominion is still a modestly-sized, privately-owned company. They have about 250 employees. They’re entitled to reap the financial benefits of their own work, to take care of their employees, and to ensure the company’s ongoing viability. 

Let’s also give Dominion due credit for exacting meaningful accountability, even beyond the cash. No, Dominion didn’t force Fox News to apologize or retract its false reporting. And no, we won’t see Tucker Carlson reading a heartfelt mea culpa on air. But that was simply never going to happen in any realistic scenario. Even if Dominion had pushed this case to trial and won, jury verdicts don’t come with public apologies. 

Don’t lose sight of what Dominion has accomplished here. They exposed Fox’s deep, corrosive journalistic fraud. They showed us the trove of internal Fox texts and emails that prove their own top on-air personalities and executives knew full well that its claims of election fraud were – and I quote Fox’s own people – “insane,” “nuts,” “reckless,” “BS,” a “myth.” And Dominion obtained a pre-trial ruling from the judge that, as a matter of law, Fox had in fact deceived its viewers: it is “CRYSTAL clear that none of the statements relating to Dominion about the 2020 election are true.” (The all-caps and the bold font are the judge’s own flourishes. He really meant it.) That’s on the record, for all time. 

So let’s not pick at the margins or sulk about what might have befallen Fox in some impossible, dream scenario. Instead, let’s commend Dominion for achieving a rare double play. They took care of their own bottom line – and they advanced the causes of truth, transparency, and accountability.

Stay Informed,

Elie

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