“We Acknowledge the Court’s Rulings” and Other Terrible Apologies

Posted in: Law Practice

A good apology acknowledges harm and the actions that led to it. It can help repair mistakes and wrongs, signaling accountability and helping people move forward. In both legal and personal settings, we have all seen gradations of apologies: “I am sorry,” “Sorry you feel that way,” “I’m sorry if you were offended,” “Mistakes were made.” The statement from Fox News at the end of Dominion’s defamation case had none of that subtlety. Rather than a clear acknowledgment of wrongdoing or an apology, Fox issued a statement: “We acknowledge the Court’s rulings finding certain claims about Dominion to be false.” This non-apology, non-acknowledgment led to a chorus of unsatisfied commentators wishing for more. The Fox/Dominion settlement provides a high-profile case study for the role of apology and acknowledgment when a lawsuit settles and, more broadly, a vivid demonstration of the public desire for apology.

In a previous column, we noted one way in which the record-breaking settlement of the lawsuit between Dominion Voting Systems and Fox News was ordinary: commentary on the settlement reflected the ways that the public reacts to settlement more generally. The public desire for apology, including when a case settles, is also strikingly consistent with existing research. The seemingly unusual Fox/Dominion example looks much less unique when seen in the context of the empirical research into apologies and acknowledgments and what the public thinks about settlement.

Fox’s Non-Apology

Following the settlement between Dominion Voting Systems and Fox News, commentators were quick to note that “[u]nder the terms of the settlement, Fox News will not have to apologize or admit to spreading false claims on network programming.” Indeed, a key sticking point in the parties’ negotiations was what Fox would or would not have to say. The result was the heavily negotiated statement acknowledging the court’s rulings. As noted by the New Yorker’s Clare Malone, “It was the sort of non-apology that only an enormous team of lawyers could write.”

Sometimes a Settlement Signals Admission of Fault

Despite Fox’s tepid declaration, Dominion characterized the statement and the settlement as an admission, claiming that “Fox has admitted to telling lies about Dominion that caused enormous damage to my Company, our employees, and our customers.” Dominion lawyers also noted, “Money is accountability.” And Michelle Goldberg at the New York Times wrote that the settlement “constitutes a humiliating admission of fault by the network.”

Consistent with these characterizations, our research has found that people tend to conclude that a settling defendant is (implicitly) admitting fault, even if the settlement does not include an express admission of fault or an explicit apology. At the same time, however, the people we surveyed also tended to think that settling defendants should directly admit fault and apologize. In other words, while the decision to settle alone may signal responsibility or admission of fault, and a large monetary payment may do some of the accountability work, there are also signs that people still want an explicit apology.

Desire for an Apology

Dominion and many observers asserted that the settlement implied at least a tacit admission of fault and that Fox had been held accountable. Many commentators, however, noted the absence of an apology or retraction. One headline read: “Fox News Paid $787M to Avoid Saying ‘Sorry.’” CNN’s Jake Tapper pressed Dominion’s CEO John Poulos about why the settlement did not include an apology from Fox, and on Good Morning America, George Stephanopoulos put it even more bluntly: “[W]hat you didn’t get was an apology.”

Like many commentators, late-night host Jimmy Kimmel expressed disappointment that the settlement didn’t require Fox to take responsibility or apologize: “While obviously Fox is the main villain here, I also want to say nice going to Dominion. We naively thought that this was about making Fox News take responsibility for destroying their reputation because that’s what they told us that it was about. But, no, they took the money instead which means that the liars … don’t have to say anything about it at all, no apologies, no testimony.…” Hosts Stephen Colbert and Jordan Klepper created their own heavily edited mashups of Fox personalities giving the apologies the hosts wanted to see from the network.

These calls for public accountability and apology are consistent with what we know about apologies and accountability from prior work. Apologies are part of what many claimants hope to get from a lawsuit and the desire for an apology is one factor that motivates people to sue. When an apology isn’t forthcoming, people may try to negotiate apologies as part of a settlement. After cases have been resolved—either through a settlement or a trial—claimants will often lament that they still didn’t get an apology.

Why are apologies so focal? Injured parties—and in cases of public interest, the public—want acknowledgment, accountability, harm repair, and non-repetition of the harmful behavior. Apologies speak to each of these. A good apology acknowledges the harm and the behavior that led to it. Taking responsibility provides a measure of accountability. Apologies may be able to remedy some types of harm, particularly in cases like defamation in which there is a need to repair damage to reputation. And apologies tend to be interpreted as signals that the offense was an aberration, that the offender understands how the behavior violated shared norms, and that, therefore, the offense is unlikely to be repeated.

Public Accountability from Private Agreements?

Although settlements are between the parties to the litigation, there can also be a public interest in apologies as a measure of accountability. The audience for an apology in the defamation suit would be Dominion, of course, but also the public given the very public harm. However, the Fox/Dominion settlement is a stark example of the multiple audiences for an apology and how the incentives and desires of these private parties and public audiences may diverge.

The signaling effect of an apology might have been particularly strong in this case, where observers had hoped to see on-air personalities at Fox News openly admit that they had lied and misled viewers. When the settlement did not require such admissions, many worried that those same viewers might never see or hear even the half-hearted statement of “acknowledgment” that Fox did issue. At the same time, even critics of the settlement reluctantly admitted, as Kimmel did, that Dominion was free—or even obligated—to make a deal that was good for the company, even if the public remained unsatisfied.

Our research suggests that people generally think of settlement as a private affair. They tend to think that parties should be free to include the terms they wish in the agreement, and those terms are, in most cases, no one’s business but the parties’. However, our research and others’ also show that many people are also concerned about the harm that private settlement agreements might conceal or enable. These apparently contradictory notions about the public and the private nature of settlements, and the facts or circumstances that might trigger people to think of any individual case as public or private, are largely unstudied—though our empirical studies begin to lay the groundwork.

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Given this research, we should not be surprised that calls for good apologies persist, with apologies and acknowledgments part of lawsuits and settlement negotiations throughout the legal system. We may even get a more specific replay: a lawyer for Smartmatic, the voting tech company that still has a pending lawsuit against Fox, said that his client “need[s] to get an apology.” On the other hand, as John Poulos wrote in a New York Times op-ed defending Dominion’s settlement: “Fox acknowledged what we needed it to acknowledge: Spreading false claims comes with a huge price tag.”

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