It has been called the trial of the century and well it may be. Dominion v. Fox News went forward this morning as scheduled and so far Fox is floating a somewhat novel legal theory, that they weren’t acting with actual malice or reckless disregard of the truth, because mostly they were quoting Donald Trump, in his capacity as president. So far reaction is underwhelming, let’s just say that much.
The argument raises a basic question of morality, as well as common sense. Is “truth” merely what you can prove, which is a cynical legal definition of the word? Or, is the truth something that journalists are duty bound to find out, regardless of the stature of the person who may be uttering an untruth? And on a common sense level, politicians have been known to lie since forever and journalism is about speaking truth to power.
Expect a lot of philosophical constructs to come out of this trial. Fox News doesn’t have either the facts or the law on its side, so it’s going to flail and do the best it can to defend itself. So far it looks like this is it, “Trump made us do it.” Newsweek:
The night before the trial’s scheduled start, attorneys for Fox News filed documents imploring the judge overseeing the case to allow them to introduce evidence arguing the company’s allegedly defamatory claims against Dominion’s voting machines were primarily inspired by Trump’s own rhetoric that the election—with Dominion’s involvement—was specifically rigged against him.
Such a development, if accepted, could play a key role in the development of the case. To successfully win a defamation suit, the allegedly defamed entity would have to prove the person or organization who defamed it did so with harmful intent.
Because Trump was the president, Fox News’ attorneys argued, his comments about the company were therefore newsworthy, raising questions about whether the conservative network’s personalities were acting with “actual malice” in repeating them on the air.
In deciding whether Fox News and its reporters willfully defamed Dominion, its attorneys argued, members of the jury should be asked to decide whether “allegations being made by a sitting U.S. president have credibility because of who is making the allegations.”
You see where this is going. It’s asking the jury to forget about empirical evidence, of which there was a great abundance, that there was no election fraud in reality, only in the fantasy world of the ego-bound defeated president. It’s also asking the jury to excuse broadcasters who make factually wrong comments, asking that the “credibility” of the speaker be taken first and foremost above easily proven fact. I don’t see this flying, but we are only Day One of a trial that is expected to run six weeks.
And then of course Trump had to weigh in with all-caps shrieking, what else? This is from yesterday, when Trump was busy playing armchair lawyer, judge, and jury.
And Newsweek is reporting this as well.
On Sunday night, however, attorneys for Fox argued in a new filing that Dominion had allegedly slashed the damages the company was seeking to just $600 million, well below the $1.6 billion the company originally sought. That same day, The Wall Street Journal—which is owned by a subsidiary of Murdoch’s News Corp.—reported that Fox had made a late push to settle the dispute with Dominion Voting Systems out of court.
That may have been the discussion on Sunday night, but it is Tuesday and the afternoon session of the trial is set to go forward. Looks like the case is being heard. Finally.
If it’s true that Dominion has reduced its demands for compensatory damages to a mere $600 million, I can only conclude that they’re counting on the jury awarding vastly greater sums as punitive damages.
I see he’s back to misspelling “stolen”.
Must be pretty wound up.
That, or he could just be hungry.
It would have been simple for Fox to avoid all this, with a bit of misdirection and hedging in their broadcasts. For example: Trump (or Rudy Giuliani, or Sydney Powell etc.) said “blah blah blah” although they have yet to make the same claim(s) in court or provide supporting evidence to a judge. It’s by de-emphasizing that second part, turning into a throwaway line that would have covered their butts. Same with ever so briefly noting it when having one of these lying fools on the air. Fox’s problem is that they refused to offer such qualifications to what they aired and instead presented it day after day as gospel, or gave guests their platform to do so with about as much pushback as exhaling into a hurricane force wind.
Look, even the typical hack journalist knows how to cover their butt with adding in a tad of CYA stuff and that’s what this trial will boil down to. Fox will try pointing to b.s. notions such as you’ve described and making a BFD out of the literal one or two instances in a thousand of them offering a qualifier. Not unlike Trump’s J6 speech to the crowd where he repeatedly jacked them up and asked them to be violent when they headed to the Capitol if LE wouldn’t let them in, and points to a limited “be peaceful” statement that was essential a “the lawyers tell me I have to say this to cover my butt but you know what I really mean!” fashion.
I think Fox is scared. Dominion is probably a tad nervous too now that it’s actually on in court but Fox has good reason to have rectums turning feces into lumps as hard as diamonds. What I find interesting, and unless I am way off base Jack Smith and his team working on the J6 part of their investigation do too is Trump keeps popping up and publicly urging Fox to LIE. The legal talking head drone on and on about certain crimes, at least when rich/powerful people commit them are oh so next to impossible to prove in court because establishing “intent” is the equivalent of a non-pilot taking the controls of a jumbo yet and turning its wings 90% to the ground & flying it successfully through the Gateway Arch in St. Louis. Trump has already provided intent, but right now even with Smith’s team clearly making progress he KEEPS providing fresh evidence of his intent to lie AND organize others into a larger effort to LIE.
A huge victory for Dominion. The NYTimes is speculating that they will get at least $600 million in the settlement, which is a massive hit for Fox News and Murdoch’s empire in general. trump is almost certainly going to lose his free air time on Fox, which is why he is in all caps today. What will Fox look like a few months down the road, or will it exist at all? I hope not.