What’s So Special About the Fox/Dominion Settlement? Less Than You’d Think

Posted in: Law Practice

The record-breaking settlement of the lawsuit between Dominion Voting Systems and Fox News was, in many ways, a surprise. Reporters and spectators had been expecting and preparing for six weeks or more of trial coverage when, after a delay of several hours, the judge announced that the parties had “resolved their case.” The immediate reaction in the courtroom was an “audible gasp,” followed in the next days by a chorus of comments and coverage focused on this surprising result. But the Fox/Dominion settlement is more ordinary than you might think. Ordinary because settlement is the most common resolution for civil disputes. But also ordinary because reactions to the settlement have tracked public reactions to everyday settlements of civil litigation, including the settlement of garden-variety tort cases or contract disputes that have no connection to politics or the fate of democracy. How do we know? We know because we asked almost 2000 people what they think a settlement is and why they think parties settle. The news coverage and commentary about the Dominion/Fox settlement illustrates many of the patterns in our findings.

Settlement Signals Responsibility

Within hours of the Dominion settlement, many people expressed the idea that Fox News, by settling, was acknowledging it did something wrong. In the New York Times, Michelle Goldberg opined that the settlement, “constitutes a humiliating admission of fault by the network[.]”

Commentators connected the size of the settlement with responsibility. CNN analyst Laura Coates told host Jake Tapper, “You’re not going to go ahead and pay that amount of money because you believe that you were ultimately truthful and that you were going to prevail.” On Twitter, commentator Keith Boykin wrote, “You don’t pay that kind of money unless you know you’ve done something horribly wrong.” A former Fox News contributor said that “$787 million is an admission—a legal admission—of lying.”

Boykin Tweet

The amount of money in the settlement reportedly struck commentators across the political spectrum. The Washington Post quoted a former Republican secretary of state for Kentucky: “The dollar amount is so huge and so easy to understand if you’re a member of the public.” A Democratic official from Pennsylvania reportedly said that: “Accountability takes many forms. . . . But dollars speak loudly to large corporations.” Dominion lawyers said it plainly: “Money is accountability.”

Like these commentators, participants in our studies often inferred that a settling defendant was responsible for the plaintiff’s harm. Asked why a defendant might have chosen to settle different types of cases, about a third of participants speculated that the defendant was to blame. “I think he settled the case because he was guilty and he knew it,” wrote one participant. “He was most likely at fault,” reasoned another. Another participant wrote, “Because they’re guilty; otherwise they wouldn’t have a reason to do it.”

Interestingly, this inference of responsibility was hard for a defendant to avoid. In terms of perceived responsibility, we found that settling is just as bad for defendants as losing at trial. Indeed, the damage seems to be done at the moment the case is filed, and it can only be repaired (if at all) by winning the case.

As some of the Fox/Dominion commentary suggests, the size of the settlement also seems to have played a role in what the public thought. In our survey of a nationally representative sample of U.S. adults, respondents put money at the heart of settlement. Almost all of them (98.9%) thought that settlement at least sometimes includes a monetary payment. There’s more work to be done, but this is not the only context where payment, especially of large amounts, is described by some as an admission.

The Plaintiff Won (?)

A number of commentators referred not to Fox’s culpability, but instead to the idea that plaintiff Dominion had “won.” Laurence Tribe tweeted, “Dominion won a spectacular victory not from what it forced FOX to admit, which was nearly nothing, but from (1) how it collected ~6x its provable damages and from (2) all the amazing evidence of deliberate lies it forced into the open — evidence that FOX was desperate to conceal[.]” Even as many complained about the trial that would not occur, they referred to the settlement as a win for Dominion. New York Times correspondent Michael M. Grynbaum led with “On the surface, Fox News got pummeled,” before noting the disappointment many people were expressing that Fox was not forced to pay more. Later in the same column, Grynbaum wrote, “For Dominion, a for-profit company that argued its reputation and future revenues were devastated by Fox’s coverage, the settlement was a win.”

In our empirical studies, we asked people whether a settlement means the plaintiff or the defendant “wins” the case. Participants had mixed views about whether anyone “won” in a settlement. But some clearly stated that settlement “means that one party wins against the other party.” And the plaintiff was more likely to be seen as the winning party. Overall, participants generally viewed a settlement as a favorable or neutral outcome for plaintiffs and a negative outcome for defendants.

 Fox’s (Other) Incentives to Settle

Despite characterizing the settlement as a win for Dominion, many commentators noted that Fox had its own reasons to settle the case. At Vanity Fair, journalist Brian Stelter argued that by settling and avoiding a trial, “Dominion won, yes, but Fox won too.” Even with the damaging information that was already known to the public on the eve of trial, most experts predicted that things would have gotten worse for Fox if they had proceeded to trial. “Tuesday’s settlement spared Fox the peril of having some of its best-known figures called to the witness stand and subjected to potentially withering questioning,” reported Reuters. BBC reporter Michelle Fleury, reporting from the courthouse where the trial was supposed to have taken place, commented, “One thing is certain, today’s outcome saves Fox News from airing its dirty linen and [Fox Corporation Chair Rupert] Murdoch from having to take the stand.”

Reputational concerns were also cited by our study participants as likely reasons for settlement. One participant wrote, “They wanted to save face in the eyes of the media. They didn’t want to tarnish their reputation.” Another said of the defendant, “He might have settled because he didn’t want to go through the public spectacle of a lawsuit.”

Similarly, participants suggested that the costs of a trial, both in time and money, were just too great. One wrote that the parties may have settled, “[t]o avoid costly and lengthy legal proceedings.” About the Fox/Dominion settlement, a CNN business headline said simply, “Fox avoids painful six-week trial[.]”

Finally, many commentators speculated about the risks not just to Fox’s reputation (and the reputations of its stars), but also the risk of losing at trial. Speaking on the New York Times podcast The Daily, host Michael Barbaro said of the evidence released, “So if you’re Dominion and the basis of your lawsuit is showing that Fox News was lying about you and knew it was lying about you, these pieces of evidence were looking very powerful.”

This, too, is echoed by the participants in our studies. “It seems the evidence against [him] is quite damning, and it would be difficult for him to dispute the allegations,” wrote one participant of a hypothetical defendant. Another participant succinctly articulated a sentiment that seems to be on many commentators’ minds: “Because they knew they couldn’t win.”

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Does the agreement between Dominion and Fox merit special attention? Yes and no. On one hand, the defamation claims against Fox News and other outlets raise serious questions about the role of the media in supporting (and undermining) democratic systems of governance. The trial had become hotly anticipated, at least as much for the spectacle it promised as for the possible implications of a verdict. And the settlement itself was notable for its magnitude as compared to other defamation settlements.

On the other hand, the Fox/Dominion case is an, admittedly high-profile, example of a process that happens all the time. The dispute has ended exactly how most cases of this type do: with a settlement agreement. And for all the case’s weighty implications, the public reactions to the settlement are exactly what we would expect.

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