[Stephen L. Carter] The costs of pandering to the crowd

I’m not surprised that Fox News settled the Dominion defamation lawsuit, though like everyone else I’m taken aback by the amount. My suspicion is that the decision to drop the defense stemmed less from a fear of the jury verdict -- which might have been much lower -- than from the reputational toll a trial would have caused. And if there’s a lesson here, it’s not so much about Fox News as such but about the growing costs of pandering to your audience.

If you’re reading this column, you know the background. In the wake of former US President Donald Trump’s defeat in his 2020 re-election bid, many of his supporters insisted that there’d been fraud at the polls. No big deal. Allegations of fraud are as old as America, and had the matter been left in the realm of vague conspiracy charges, there would have been no litigation.

Instead, a number of those in Trump’s inner circle decided that the voting machines had somehow been tampered with, and announced that Dominion was the villain. Various Fox News programs repeatedly aired the claims. Since the allegations were utterly baseless, and the network refused to stop stoking them, Dominion sued.

Fox News tried and failed to get the case dismissed. Once the judge ruled that the allegations were false as a matter of law and defamatory per se, everyone expected a settlement. Yet I cannot help wondering whether, had the case gone to trial, Fox might have won on the merits.

Wait, what?

I’m serious. No, I’m not saying Fox News would definitely have won. But there was a fighting chance. Why? Because the bar for proving defamation is high, and requires showing that one’s defamer acted with “actual malice.” And in the same ruling, the trial court declined to find that in airing the false and silly charges, Fox acted with actual malice. That question, wrote the judge, was better left to a jury.

Yes, we’ve all seen the many disturbing text messages showing that lots of people at the network secretly despised Trump, thought his allegations of fraud were baseless, and fretted about losing viewers if they debunked his claims. But there’s no guarantee that Dominion would have been able to show a clear line between those beliefs and executives’ decisions about who got air time. Even if a jury wasn’t fully convinced by Fox’s defense, the broadcaster might have wound up paying only nominal damages.

So why settle? Well, at trial anything can happen. More important, even if Fox News thought it had a shot at winning, the price of that victory would’ve been enormous. Imagine a long line of executives, producers and hosts trooping to the witness stand to be examined by the plaintiffs about what they knew and when they knew it. Under oath.

Even for Fox News, whose annual revenue is in excess of $14 billion, $787 million isn’t pocket change. But the company plainly decided it’s worth the money to avoid gavel-to-gavel coverage of how the sausage is made.

I’m not claiming that Fox News is unique. When defamation suits against deep-pocketed defendants survive motions to dismiss, they’re almost always settled. To go to trial always risks too much reputational damage.

So why am I worried?

Because Fox was only the most egregious offender in an age when institutions of all kinds tend to swiftly choose sides without bothering to gather much evidence. And that rush to defamatory judgment is hardly just the province of those who lean rightward. Look at Oberlin College’s payment of $36 million to Gibson’s Bakery after a dean accused the local business of racism. Or Duke University’s payment of a reported $60 million to three lacrosse players falsely accused of rape. Or for that matter, the multiple news outlets that paid Nicholas Sandmann, a pro-life student demonstrator, an array of undisclosed sums. All of this was due to defamation that resulted from taking sides before getting the facts.

It’s not being wrong that leads to these outcomes. Everybody’s wrong sometimes, and most of us are wrong a lot. What leads to these huge settlements is the great hurry to be heard, to take a position, to prove to whoever’s out there listening that you’re on their side, even if you have to trample somebody’s reputation along the way. If something sets Fox apart, it’s that it persisted in airing the falsehood its audience wanted to hear for so long.

Fox News misbehaved badly, and I’m glad Dominion is getting paid. But as to whether the enormous settlement will put a brake on our growing tendency to rush to repeat whatever our particular audience wants to hear -- whether or not it’s actually true -- color me skeptical.

Stephen L. Carter

Stephen L. Carter is a Bloomberg Opinion columnist and a professor of law at Yale University. -- Ed.

(Tribune Content Agency)

By Korea Herald(khnews@heraldcorp.com)