The Fox Lawsuit Was Never Going to Save America

Looking east towards 6th Avenue along the north (48th Street) side of the Fox News building on a snowy afternoon. Photo: Jim Henderson, Creative Commons Zero, Public Domain Dedication

By Danny R. Johnson – Political News Editor

A day before Fox News agreed to a $787.5 million settlement with Dominion Voting Systems over the right-wing network’s promotion of election conspiracy theories, the New Republic editor Michael Tomasky urged Dominion not to settle.

Writing that “Rupert’s Reign of Terror can be ended,” Tomasky argued that the lawsuit might finally persuade cable providers to stop carrying the network, or other news organizations to stop treating it like a peer. Elsewhere, the media critic Margaret Sullivan argued, “If Dominion prevails, Fox News may be forced to become less reckless.”

Those who are disappointed that Dominion decided to settle, hoping that its lawsuit might have led to the end of Fox, should know that was never going to happen. Beyond the fact that the case would never have emptied Rupert Murdoch’s deep pockets, among the lawsuit’s grimmest revelations was that the network lies to its audience because its audience wants to be lied to. Fox News amplified its promotion of Donald Trump’s falsehoods in part because it was losing its audience to other right-wing propaganda outlets more willing to affirm those falsehoods. Even if the suit had managed to bankrupt Fox News, something similar would have risen in its place. The willing audience for reactionary agitprop, and the web of right-wing billionaires eager to finance it, would have remained. Indeed, Fox News’s ratings were undiminished by the disclosures. The only thing that would drive away Fox News’s viewers, we now know, would be if it started telling them the truth.

“For years, some liberals had believed that if Fox simply told the truth, its viewers would change their minds,” my colleague David Graham wrote. “Instead, they changed the channel.”

This does not diminish the significance of the suit’s revelations. The evidence showed Fox News to be a propaganda machine that punishes those who provide its audience with inconvenient facts and elevates those who keep its viewers’ eyes glued to the screen, whether or not what they are saying is correct. It was willing to abet a conspiracy against the constitutional government to improve its ratings. At issue here were not errors of fact, framing, or even ideological blind spots—flaws that can afflict any well-intentioned journalist or media organization. The lawsuit shows these were conscious decisions to mislead, made for self-interested and partisan reasons. The Dominion disclosures proved that much, even if the network’s core viewers refuse to believe it.

Successfully suing a news network for defamation is extraordinarily hard, because litigants have to prove that the organization behaved with “actual malice,” knowingly lying or acting with reckless disregard for the truth. Fox News settled because it knew, even under the appropriately high standard for defamation of public figures in American law, that it was likely to lose. No doubt many conservatives who echoed Donald Trump’s call to “open up the libel laws” in order to attack the media will now lament that Fox News was not able to lie with impunity.

Along with the outcome in the Sandy Hook case, there is ample evidence that liars can be held to account under the actual-malice standard. Conservative hand-wringing over both verdicts indicates that critics of the standard are less concerned with punishing liars than with intimidating outlets they perceive as too liberal.

Right-wing judges have been eager to overturn that standard, in order to make it easier for the wealthy and connected to silence those who dare to challenge them. Had Fox News lost and appealed to the Supreme Court, the case would have come before at least two justices—Clarence Thomas and Neil Gorsuch—who have openly suggested that the actual-malice standard should be overturned. Their behavior at oral argument and their written opinions suggest the justices consume a tremendous amount of right-wing media, but that does not mean they’d necessarily side with the network, even though some attorneys at Fox News reportedly believed that the six-justice conservative majority would rule in their favor. Indeed, a case like this might have been the ideal vehicle to overturn the standard, because adhering to the ideological principle of wanting to punish the press and protect the wealthy from criticism would have come with the added benefit of making the Court appear above partisanship.

The Dominion settlement means the justices will not get that opportunity, at least not yet. The Politico media critic Jack Shafer argued that the settlement represents yet another victory for Murdoch, who is happy to shell out cash for lawsuits without changing a thing about how his outlets do business. This is similarly overstated. Fox News has been revealed as a propaganda factory that would rather misinform its viewers than level with them. Its most prominent faces and leaders have been revealed as cowards and bullies who will turn on their own colleagues for doing their jobs properly. Destroying Fox News—or Murdoch, for that matter—was never really on the table.

A trial might have produced more uncomfortable and revealing moments for the rich frauds Fox News puts on television every night. That’s not nothing, but it’s also not necessary to prove what everyone whose brain isn’t completely rinsed now knows. Fox News faces a second lawsuit from another voting-machine company, Smartmatic, which may yet offer more insight into how the network functions. But there was no ending here where conservatives were going to cease to exist or to demand media coverage that reflects their sensibilities.

For that reason, the Smartmatic lawsuit won’t save America from Fox News either, or from whatever succeeds it. No lawsuit, no investigation, no state intervention can prevent people from believing falsehoods they want to be true. The only real solution is to prevent those operating under such delusions, or the politicians beholden to them, from wielding power. And that is not the work of the courts, or of corporations like Dominion. That, unfortunately, is the work of politics. And in a democracy, it is work that never ends.



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