--:-- Noel King: The truth matters. Lies have consequences. Fox News is going to pay $787.5 million to Dominion Voting Systems to settle a defamation lawsuit.
--:-- Noel King: Through the process of discovery in that suit, we learned that Fox didn't believe the lies it told about who won the 2020 election. It told them because it didn't want to lose its audience of Trump supporters.
--:-- Noel King: The terms of the settlement dictate that Fox won't have to cop to its lies and Rupert Murdoch and other Fox grandees won't have to testify.
--:-- Noel King: But Fox is almost astonishingly facing another multibillion-dollar lawsuit by a different voting company on exactly the same grounds.
--:-- Noel King: Coming up on Today Explained, what happened and what's next for Fox News.
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--:-- Noel King: It's Today Explained. I'm Noelle King.
--:-- Noel King: The Washington Post media critic Eric Wemple was there at the courthouse yesterday, like everyone else, expecting a trial to start soon.
--:-- Eric Wemple: They delayed the trial on Monday, a full day, because the parties were trying to settle.
--:-- Eric Wemple: And then we got in there on Tuesday, and we were all expecting everything to go.
--:-- Eric Wemple: And they finished selecting the jury on Tuesday morning.
--:-- Eric Wemple: And then on Tuesday afternoon, we were all settled in for the opening statements.
--:-- Eric Wemple: And we just kept waiting, waiting, waiting.
--:-- Eric Wemple: And some people speculated that there were serious settlement discussions going on.
--:-- Eric Wemple: Other people thought there might be a jury issue, but mainly you just don't know.
--:-- Eric Wemple: So then the judge came back after a long, like, two-hour absence and said the parties have resolved the matter.
--:-- Eric Wemple: And so we were off to the races trying to get statements and trying to figure out what happened.
--:-- Eric Wemple: You know, there's only so much information that spills out after something like this.
--:-- Eric Wemple: Settlements are so often just shrouded in complete mystery, but at least in this case, we got a number.
--:-- Eric Wemple: Let's go back to the beginning. Dominion accused Fox News of doing what exactly?
--:-- Eric Wemple: This is a defamation case. Dominion accused Fox News of publishing falsehoods about its business and connected to the 2020 election.
--:-- Eric Wemple: It said that Dominion basically participated in an election vote rigging scheme to take a legitimately elected Donald Trump and turn him into Joe Biden.
--:-- Eric Wemple: So the idea was that the Dominion technology was somehow rigged to flip votes in favor of Joe Biden.
--:-- Noel King: Welcome back. I'm back with Sidney Powell, who is part of President Trump's legal team in contesting this election.
--:-- Sidney Powell: That's to put it mildly. The computer glitches could not and should not have happened at all.
--:-- Sidney Powell: That is where the fraud took place, where they were flipping votes in the computer system or adding votes that did not exist.
--:-- Sidney Powell: All of it was false.
--:-- Noel King: I imagine you were watching a lot of Fox News at the time, you know, for analysis reasons.
--:-- Sidney Powell: It's pretty memorable stuff.
--:-- Sidney Powell: It was an issue at the time.
--:-- Sidney Powell: This didn't, you know, the suit didn't come out of nowhere.
--:-- Sidney Powell: You know, this is a huge plume of defamatory statements that we're talking about here.
--:-- Sidney Powell: There was a ton of conspiracy theorizing going on at the time.
--:-- Sidney Powell: Fox picked up a significant amount of it, especially on their sort of junior varsity hosts.
--:-- Sidney Powell: I mean, we're talking about Lou Dobbs, Jeanine Pirro, Maria Bartiromo.
--:-- Sidney Powell: I think most Americans right now cannot believe what we're witnessing in this election.
--:-- Sidney Powell: We have across almost every state, whether it's Dominion, EBS, whatever the company, voting machine company is, No one knows their ownership, has no idea what's going on in those servers, has no understanding of the software because it's proprietary.
--:-- Sidney Powell: It is the most ludicrous, irresponsible, and rancid system.
--:-- Noel King: What does Fox News say to Dominion's accusations, allegations?
--:-- Eric Wemple: You know, boiled down to its essence, Fox News claimed that it was doing newsworthy work.
--:-- Eric Wemple: In other words, that Trump, he was the president of the United States.
--:-- Eric Wemple: His lawyers, lawyers working for the president of the United States, were making arguments that the election was stolen.
--:-- Eric Wemple: And therefore, what does a news organization do?
--:-- Eric Wemple: Well, a news organization covers these allegations.
--:-- Eric Wemple: So Fox News was basically making a newsworthy argument, protected by the First Amendment, covering the statements of the highest official in the land.
--:-- Eric Wemple: How could you possibly have a problem with that? That's journalism.
--:-- Eric Wemple: It also claimed that it merely presented these things as allegations and not as sort of hardened fact.
--:-- Noel King: Okay so this case goes to court and there a process of discovery during which time some texts from Fox are uncovered some statements from inside the company, emails, etc., etc.
--:-- Eric Wemple: We learned everything in discovery.
--:-- Eric Wemple: You know, by the time they had gotten the trial, Dominion identified 7,021 trial exhibits.
--:-- Eric Wemple: We're talking about hundreds and hundreds and thousands of pages of discovery.
--:-- Eric Wemple: It basically showed that Fox is a tremendously corrupt place where they take theories and craziness and unconfirmed contentions and wrap them into a narrative and basically lied to their viewers that there was some truth to this idea that President Trump had the election stolen from him.
--:-- Eric Wemple: That's what we learned at its core from the discovery materials.
--:-- Eric Wemple: There was further embarrassment for the network when during the discovery process, it had to turn over text messages from Fox personalities like Tucker Carlson, Sean Hannity, and Laura Ingram.
--:-- Eric Wemple: A notable example was a text from Carlson to an unidentified person that Fox News is, quote, very, very close to being able to ignore Trump most nights.
--:-- Eric Wemple: I truly can't wait.
--:-- Eric Wemple: Close quote.
--:-- Eric Wemple: He later said that he hates Trump passionately and, quote, I can't handle much more of this.
--:-- Eric Wemple: They were texting each other all kinds of really candid opinions about this theory of stolen elections.
--:-- Eric Wemple: It completely contradicted the sort of stuff that they were putting on the airwaves.
--:-- Eric Wemple: On January 6th, Tucker texted a producer, he is a demonic force, a destroyer.
--:-- Eric Wemple: So that's why at the end of the day, when the Dominion lawyers came out in front of the courthouse, they say there are consequences for lies.
--:-- Eric Wemple: They were able to say lies because we see what the Fox people really believed and what the network was broadcasting.
--:-- Eric Wemple: Those two were completely incompatible.
--:-- Eric Wemple: Today's settlement of $787,500,000 represents vindication and accountability.
--:-- Eric Wemple: Lies have consequences.
--:-- Eric Wemple: The question that I had for the Dominion people and that others did as well was, hey, did you, Dominion, demand any retractions or apologies or any sort of straightening out of the record that would have to occur on Fox News airwaves?
--:-- Eric Wemple: So we really pressed them on that, and they just basically turned on their heel and walked away.
--:-- Eric Wemple: They did not answer that question.
--:-- Eric Wemple: I later reported and several people reported, I believe it's pretty well established, that there are no requirements in the settlement agreement that Fox News publish a retraction or correction or an apology.
--:-- Eric Wemple: So that part did not happen.
--:-- Eric Wemple: And that is one of the reasons why you see some degree of disenchantment with this process.
--:-- Eric Wemple: This enchantment not only because the settlement prevents people like Sean Hannity and Tucker Carlson having to take the stand, but also the fact that Fox News viewers do not get front and center retraction of stuff they may have seen on their favorite cable channel.
--:-- Eric Wemple: What are the terms of the settlement? If Dominion doesn't get an apology and an acknowledgement, what does it get?
--:-- Eric Wemple: Look, it's $787.5 million, which is about a little less than half of what Dominion demanded in the lawsuit.
--:-- Eric Wemple: They demanded $1.6 billion.
--:-- Eric Wemple: It's important to note that this settlement happened just before opening statements.
--:-- Eric Wemple: You know, there's some sort of significance to that just in terms of wild speculation here.
--:-- Eric Wemple: I know wild speculation is not a good idea when we're talking about this case.
--:-- Eric Wemple: But I'm going to engage in it.
--:-- Eric Wemple: Fox News's lawyer, I think, could not have wanted to give an open statement in this case because the judge in the case in his summary judgment ruling basically tossed out all kinds of defenses for Fox said that they couldn't argue that it was newsworthy as a matter of law because that's not a valid protection in New York state law under the First Amendment.
--:-- Eric Wemple: Whatever you can't say it was newsworthy that will not work as a defense.
--:-- Eric Wemple: He determined also that they couldn't call it opinion because, as you may know, opinion has a wide berth under First Amendment law.
--:-- Eric Wemple: If you're just riffing about what you feel, it's, you know, you really can't be busted for defamation.
--:-- Eric Wemple: And he said you couldn't use other doctrines like the fair report doctrine, the neutral reporting privilege, so on and so forth.
--:-- Eric Wemple: And he also said the judge ruled that the statements in question were clearly false.
--:-- Eric Wemple: He used caps, all caps, to say crystal clear that these statements were false.
--:-- Eric Wemple: And he said they were defamatory per se, which means that they subjected Dominion to ridicule and disfavor and so on and so forth.
--:-- Eric Wemple: So there just wasn't that much that the Fox News guy could have said.
--:-- Eric Wemple: I mean, he would have gotten up there and said, well, we did our best.
--:-- Eric Wemple: That's, you know, or technically he could have said this is not actual malice, which is the First Amendment standard that Dominion has to prove in order to prevail in a case like this because they're viewed as in the category of public figures.
--:-- Eric Wemple: That was never officially ruled on in the case, but they were operating under the actual malice standard.
--:-- Eric Wemple: So what Dominion gets is $787.5 million.
--:-- Eric Wemple: Does Fox News have $787.5 million?
--:-- Eric Wemple: The answer is yes.
--:-- Eric Wemple: Fox News is an enormously profitable, the main profit driver behind Fox Corp, which is the parent company, which was also named as a defendant in the suit.
--:-- Eric Wemple: There was initially a separate suit against Fox Corp, but they were consolidated.
--:-- Eric Wemple: Fox Corp, I believe, has like $4.1 billion on hand, according to the New York Times.
--:-- Eric Wemple: And I won't say that Fox will have an easy time paying it.
--:-- Eric Wemple: You know, $787 million is a large sum.
--:-- Eric Wemple: But the answer is yes.
--:-- Eric Wemple: How damaging in the end is this for Fox News, do you think?
--:-- Eric Wemple: It's minimally damaging for Fox News.
--:-- Eric Wemple: But I will say that the discovery materials and the tremendous amount of negative publicity for Fox over the past two months is a moment of accountability and transparency that Fox has rarely, if ever, seen, and that's important in itself.
--:-- Eric Wemple: Coming up after the break, 12 years into covering Fox News, Eric Wemple shares his grand unified theory of what has made Fox work and why that makes this ruling so consequential.
--:-- Noel King: You're not going to want to miss it.
--:-- Noel King: Support for today's show comes from Adio.
--:-- Noel King: What is Adio?
--:-- Eric Wemple: Adio is an AI-native customer relationship management system built specifically for the next era of companies.
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--:-- Eric Wemple: You can go to attio.com slash todayexplained to get 15% off your first year.
--:-- Noel King: Let's be honest. Are you happy with your job? Like, really happy?
--:-- Eric Wemple: The unfortunate fact is that a huge number of people can't say yes to that.
--:-- Eric Wemple: Far too many of us are stuck in a job we've outgrown, or one we never wanted in the first place.
--:-- Eric Wemple: But still, we stick it out.
--:-- Eric Wemple: And we give reasons like, what if the next move is even worse?
--:-- Eric Wemple: I've already put years into this place.
--:-- Eric Wemple: And maybe the most common one, isn't everyone kind of miserable at work?
--:-- Eric Wemple: But there's a difference between reasons for staying and excuses for not leaving.
--:-- Eric Wemple: It's time to get unstuck.
--:-- Eric Wemple: It's time for Strawberry.me.
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--:-- Eric Wemple: Go to strawberry.me slash unstuck to claim a special offer.
--:-- Noel King: That's strawberry.me slash unstuck.
--:-- Noel King: It's Today Explained. We're back with Eric Wemple, who is the media critic at The Washington Post.
--:-- Eric Wemple: Well, Fox News has a terrible case.
--:-- Eric Wemple: And this particular case exposed them as liars.
--:-- Eric Wemple: I don't know how many people have gotten through the entire thing, but every day I was continuing to read and read and read and read and read more of these filings, more of these exhibits.
--:-- Eric Wemple: It is astounding how much fraud and journalistic corruption there is.
--:-- Eric Wemple: Just in this one news story, pretty much, we're talking about discovering materials relating to several weeks, a couple months, maybe a few months in some cases.
--:-- Eric Wemple: And it's just astounding how much lying and how much avoiding the truth there is.
--:-- Eric Wemple: And there'll be a lot of people, as I mentioned earlier, that are disenchanted with this settlement.
--:-- Eric Wemple: But this record is around forever.
--:-- Eric Wemple: It never goes away.
--:-- Eric Wemple: What did Fox News avoid by settling?
--:-- Eric Wemple: I mean, this case in the newspapers, on TV, it was framed as like potentially one of the most consequential media cases in history.
--:-- Eric Wemple: We thought we were going to hear from Rupert Murdoch.
--:-- Eric Wemple: What did Fox avoid with this settlement?
--:-- Eric Wemple: The trial would have been grueling.
--:-- Eric Wemple: The trial also would have been tremendously, I think, clarifying about how Fox News does its business.
--:-- Eric Wemple: It's already been clarifying to a great extent, but it would have just been that on kind of on rocket boosters over several weeks.
--:-- Eric Wemple: It was expected to last for six weeks.
--:-- Eric Wemple: And who were we expected to hear from?
--:-- Eric Wemple: Who was going to testify or have to testify?
--:-- Eric Wemple: Well, one way or another, all the major people that you can ever, ever identify at Fox News.
--:-- Eric Wemple: Tucker Carlson, Sean Hannity, Rupert Murdoch, on down through Jeanine Pirro, Lou Dobbs, Maria Bartiromo.
--:-- Eric Wemple: But Fox did avoid more of that.
--:-- Eric Wemple: And they did avoid also the risk that the jury was just going to call, would be overwhelmed.
--:-- Eric Wemple: That was, I think, Fox's primary concern, was the jury would just be overwhelmed with how much evidence there is here and just throw the book at them in every possible way and choose the biggest possible number.
--:-- Eric Wemple: You know, they were going to discuss punitive damages.
--:-- Eric Wemple: There's a lot to discuss about the various buckets of damages that were at stake in this trial.
--:-- Eric Wemple: And damages is an impossible topic for a non-lawyer ever to explain.
--:-- Eric Wemple: But, you know, there was this, there was a tremendous risk.
--:-- Eric Wemple: Fox News knew that they had a terrible wheelbarrow load full of adverse facts.
--:-- Eric Wemple: And one thing I'd like to point out is that the last famous defamation trial that we have was Sarah Palin versus New York Times.
--:-- Eric Wemple: What do you have to say in New York Times?
--:-- Eric Wemple: Tell the truth.
--:-- Eric Wemple: It's as simple as that.
--:-- Eric Wemple: That was in February of 2022.
--:-- Eric Wemple: I covered that trial, went up there, listened in on the audio line, so on and so forth for every step of the way.
--:-- Eric Wemple: Recall that she was suing over one editorial and basically two or three sentences of content.
--:-- Eric Wemple: Dominion was suing over several weeks of nonstop broadcasting about the possibility or the allegation that Dominion was involved in a vote-flipping scheme.
--:-- Eric Wemple: So if we're talking about sheer dimensions and volume, there is really no comparison to what we just went through.
--:-- Eric Wemple: Tell me about the other lawsuit that Fox is facing, the Smartmatic lawsuit.
--:-- Eric Wemple: The suit alleges they defamed the company by inventing a story that the election was stolen from Trump and decided to make Smartmatic the quote villain.
--:-- Eric Wemple: Yeah, I mean the Smartmatic lawsuit is billion that Smartmatic is looking for.
--:-- Eric Wemple: Smartmatic is basically a voting technology company.
--:-- Eric Wemple: It had a smaller footprint in the 2020 election than did Dominion.
--:-- Eric Wemple: It worked only in L.A. County, and it has filed an enormous lawsuit against Fox News that carries many of the same points and arguments that Dominion.
--:-- Eric Wemple: The main difference, I think, here is that Smartmatic may have even a greater case since their footprint on the 2020 election was so much smaller.
--:-- Eric Wemple: Whereas Dominion had technology and machines or some sort of contracts in more than 20 states, maybe as many as 28 states.
--:-- Eric Wemple: Smartmatic was only under contract in Los Angeles County during the 2020 election.
--:-- Eric Wemple: So the idea that it was like, you know, playing this big fraudulent role in flipping America's elections is just even more insane with Smartmatic.
--:-- Eric Wemple: But, you know, and this gets back to my core theory, which will never fully be either disproven or proven.
--:-- Eric Wemple: So it's basically speculation again, but I'm happy to run through it just because this, I think, does explain a lot of the record.
--:-- Eric Wemple: Are you ready?
--:-- Eric Wemple: Yeah, hit me.
--:-- Eric Wemple: Okay, so for years, Fox News has basically used the generous media protections in the United States as part of a business model.
--:-- Eric Wemple: So it has been able to smear people like Hillary Clinton, George Soros, Barack Obama, basically all kinds of liberal prosecutors, whoever happens to be on the liberal side of American politics at any given point.
--:-- Eric Wemple: False storylines that omit important facts.
--:-- Eric Wemple: And they've been foisting this crap on their viewers for a really long time.
--:-- Eric Wemple: And skating on the legal end because they have an enormous protection.
--:-- Eric Wemple: They're constantly dealing with public figures.
--:-- Eric Wemple: And public figures under actual malice have to prove a hell of a lot in order to bring a meritorious defamation claim.
--:-- Eric Wemple: So my theory is that Fox News has internalized that.
--:-- Eric Wemple: That we don't really ever need to worry about the collateral damage and the possibility that people we talk about will ever sue us.
--:-- Eric Wemple: What they were doing here was they were taking the false narrative of the day, which was election fraud.
--:-- Eric Wemple: That was the false narrative of the day that they needed to addle their viewership.
--:-- Eric Wemple: And it's not apparent that they ever really fully considered the consequences for Dominion or Smartmatic because I think that they didn't believe that they were subject to litigation of this sort, headline-making litigation.
--:-- Eric Wemple: And the reason I believe that is because if you look through all the papers and the evidence and so on and so forth, there's little particularized malice or ill will toward Dominion.
--:-- Eric Wemple: No one is really saying, I hate those at Dominion.
--:-- Eric Wemple: We finally got our chance at them.
--:-- Eric Wemple: You know, this is our chance to do the Dominion story.
--:-- Eric Wemple: There's nothing like that.
--:-- Eric Wemple: It's just Dominion was just wrapped, embedded in this narrative that they wanted to promote.
--:-- Eric Wemple: If Fox has been operating all these years thinking, we don't really have to worry about it.
--:-- Eric Wemple: Does this settlement tell us, no, actually, the stakes have changed?
--:-- Eric Wemple: Things have changed.
--:-- Eric Wemple: Fox has said throughout, you know, this case could have grave consequences for all of media.
--:-- Eric Wemple: And it seemed to mean media like Fox, but ultimately it feels like, yeah, Fox is right.
--:-- Eric Wemple: It does have consequences for media.
--:-- Eric Wemple: You can't go around lying about people the way you've been doing, as you just said, for years and years and years.
--:-- Eric Wemple: Now you've got to think about lawsuits if you plan to do that.
--:-- Eric Wemple: I'm very happy that you landed on that point because I'm really pissed about the way Fox News has defended this, not only in court, but in their public relations statements, which is framing it as a matter of the First Amendment.
--:-- Eric Wemple: Like, this is not a First Amendment sort of like stand up for the First Amendment moment.
--:-- Eric Wemple: It really isn't.
--:-- Eric Wemple: The First Amendment does not protect certain things.
--:-- Eric Wemple: And the judge was very forceful in his pronouncements from the bench on this.
--:-- Eric Wemple: There are significant limitations to what you can do under the First Amendment.
--:-- Eric Wemple: And, you know, the cliched ones that we constantly trade in, you know, just in talking about it is, you know, yelling fire, falsely yelling fire in a crowded theater or, you know, making a threat to somebody like I'm going to kill you.
--:-- Eric Wemple: You know, stuff like that is not protected.
--:-- Eric Wemple: Another thing that is not protected is knowingly spreading false and damaging statements about someone.
--:-- Eric Wemple: And that is a real problem, right?
--:-- Eric Wemple: Like, Fox News trying to wrap itself in the First Amendment when what it had done was never protected by the First Amendment and really is not a problem for our continued freedom under the First Amendment.
--:-- Eric Wemple: In other words, the consequences, the legal consequences of doing this in no way, in no way weakens our country's First Amendment protections.
--:-- Eric Wemple: They remain intact.
--:-- Eric Wemple: The First Amendment doesn't mean anything.
--:-- Eric Wemple: If something like this goes without consequences, because then you can just lie.
--:-- Eric Wemple: You can just lie and damage people's lives.
--:-- Eric Wemple: And what kind of society do we have then?
--:-- Eric Wemple: You know, it's just not a good place to live.
--:-- Eric Wemple: And if there are consequences for media, those consequences rest squarely and exclusively at Fox News.
--:-- Noel King: Eric Wemple, media critic, Washington Post.
--:-- Noel King: Amanda Llewellyn and Victoria Chamberlain produced today's show.
--:-- Noel King: Matthew Collette edited.
--:-- Noel King: Paul Robert Mounsey and Michael Raphael engineered.
--:-- Noel King: And Laura Bullard and Miles Bryan fact-checked.
--:-- Noel King: I Ask the Questions.
--:-- Noel King: I'm Noelle King.
--:-- Noel King: It's Today Explained.
