How Dominion threw away its shot in the Fox News lawsuit: media law expert
Tucker Carlson’s abrupt exit from Fox News was a startling turn that could have been indicative of reform and remorse for the company’s deviations from credible journalism.
The separation came just days after Fox’s historic US$787.5 million settlement of a libel lawsuit brought by Dominion Voting Systems for lies spread by multiple Fox employees, including Carlson, its prime-time star. The lawsuit claimed Fox spread lies promoting a now-debunked claimed that Dominion was part of a conspiracy to steal the 2020 presidential from Donald Trump.
The settlement was a win for Fox and Dominion, even without any link to Carlson’s departure. But it was an unequivocal loss for ethical journalism, a victory for financial accountability and a defeat for responsibility.
“Money is accountability,” victorious Dominion attorney Stephen Shackelford declared in an interview with NPR, “and we got that today from Fox.”
A few days later, Fox announced it was ending its relationship with Carlson, the news organization’s biggest celebrity host and one of several Fox employees Dominion claimed enabled the spreading of false information about its role in the election.
Fox’s announcement of Carlson’s departure was brief: “We thank him for his service to the network as a host and prior to that as a contributor,” the Fox spokesman said. Because the departure was not linked to the settlement by either company, there is no credible reason to consider it a severance based on accountability or responsibility.
Accountability and responsibility are not synonymous for scholars of business practices and journalism. Conventionally, accountability in business settings is a penalty incurred for failing to live up to a responsibility. Dominion enforced Fox’s accountability with the monetary settlement.
But while Fox has acceded to its accountability, it has not owned up to its ethical responsibility as a self-described news organization. Its journalistic responsibility includes a duty to admit publicly that it failed to tell the truth. Journalism ethics require news organizations to make a correction when a mistake has been published. It’s important to note that news organizations follow ethical requirements only if they want to or if required by a legal settlement. The Dominion settlement agreement did not require an ethics-based announcement.
However, two of Fox’s competitors for far-right viewers, News Max and One America News Network, complied with the ethical requirement after they were sued for spreading similar and related lies about the 2020 election. After their settlement agreements, they admitted publishing the false information and apologized publicly. These were examples of the responsibility required by journalism ethics.
Such a requirement in Fox’s settlement agreement pales beside the massive payment Dominion is to receive and would have been an empty gesture, according to Hootan Yaghoobzadeh, an equity owner of Dominion. “These results are much more profound than some disingenuous apology or forced statement that would not have any credibility,” he said in an interview after the settlement.
For more than 20 years, I have examined how law and ethics guide how journalism is practiced in the United States. Although law and journalism ethics are often at odds, the Fox v. Dominion case was an instance in which a proceeding at law could have affirmed an ethical responsibility.
It did not.
The trial that wasn’t
Dominion filed a $1.6 billion lawsuit against New York City-based Fox News in 2021 in Delaware, where the news organization was incorporated. Court filings alleged Fox repeatedly and falsely implicated Dominion in a plot to rig the election in Joe Biden’s favor.
Jury selection for the trial was completed on April 18, but a last-minute settlement that day ended it all as Fox agreed to pay $787.5 million to Dominion without an apology or any admission of wrongdoing.
But as the recipient of more than three-quarters of a billion dollars, Dominion came out on top monetarily and declared it had held Fox News accountable.
In the world of business corporations where both parties live, money is the essence of accountability. Corporate leaders who do well get hefty bonuses. Those who mishandle their responsibilities are denied bonuses.
Fox Corp. was held accountable by the settlement not simply for lying, but for libel – harming the reputation of the Dominion corporation by lying. As such, monetary accountability was entirely appropriate.
Defamed humans usually demand more.
Defending a reputation
Historically, people in the United States and Europe would challenge their detractors to duels when their reputations or character were tainted.
In the most refined form of U.S. duels, the parties would stand back to back holding pistols and walk apart a number of paces, turn toward each other and fire one shot. Ideally, no one would be hit. The defamed person’s reputation would be restored by this ritualized proof of a willingness to die or kill for it. The defamers would suffer no loss of character either because they too demonstrated they were willing to die or kill to justify their harmful allegations.
In a refined duel, both were supposed to throw away their shot – fire without aiming or aim for the sky. But sometimes – cue Broadway playwright Lin-Manuel Miranda – one duelist would not throw away his shot. U.S. Vice President Aaron Burr aimed and, famously, killed Alexander Hamilton, a political enemy he might otherwise confront again.
Accountability is not responsibility
Over time, libel lawsuits became the more civilized alternative to duels and the only one used by “artificial people,” the legal term for corporations that defend their reputations and hold someone financially accountable.
Dominion threw away its shot by not requiring Fox News to publish a correction and apologize.
Publishing a correction – living up to the journalists’ duty of transparency, no matter how humbling it may be – is the accountability journalism ethics scholars embrace. At for-profit business corporations like Fox and Dominion, accountability is primarily in the nature of financial liability, because their primary responsibility is to maximize money-making – not lose money.
Making a correction and an admission apparently threatened a loss of money for Fox. According to pretrial court documents, Fox officials feared their audience would see that admission as a betrayal and switch to other media, as they did when Fox announced Biden had won Arizona in the 2020 presidential election. Those were among the factors at play during settlement negotiations between the two corporations, according to those privy to “the room where it happened.”
Limited financial accountability was good enough for Fox. Responsibility may have been a step too far.
Dominion could have demanded Fox take responsibility. Instead, the settlement allowed Fox News to make a statement afterward to its faithful that said in part: “This settlement reflects FOX’s continued commitment to the highest journalistic standards.”
Dominion, which was ostensibly suing to salvage its reputation from Fox’s damaging lies, could have demanded a corrective statement as part of the settlement. It could have taken that shot, which would have imposed ethical accountability on Fox.
But the money was to be made by increasing the settlement price. The disclosures of Fox’s lying were in court documents already made public, but were published in media not usually patronized by the Fox faithful – and therefore held less negotiation value for Dominion.
Correction: This article has been updated to correct the company in which Hootan Yaghoobzadeh is an equity owner.
John C. Watson, Associate Professor of Journalism, American University
This article is republished from The Conversation under a Creative Commons license. Read the original article.
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