Horse Libel

Settlement agreements — even 11th-hour ones — usually emerge from many hours of grueling negotiations.

The dollar figure, public remarks, and what the plaintiffs & defendants can — and can't — say afterward is agreed to by all parties.

It's usually quite choreographed. 2/x

— Andy Kroll (@AndyKroll) April 18, 2023

The $787 million Fox will pay as part of the settlement is hardly a rounding error.

But remember that law firms in cases like this often work on contingency. They get a cut of the settlement, likely 30 to 35%.

Ballpark: that's $250 million going to DVS's law firms.

3/x

— Andy Kroll (@AndyKroll) April 18, 2023

I’d be shocked if Dominion found a major law firm to take this case on contingency. I have no doubt Dominion considered its legal costs in this settlement. But Andy Kroll should know better than to speculate on such matters. He’s just guessing here; not speaking with authority.

What's most frustrating — it's downright infuriating — about this outcome is how little accountability it demands from Fox News.

Fox's official statement — again, almost certainly agreed to by all sides — is a tutorial in spin.

Here is the full statement:

5/x pic.twitter.com/CbViej3jse

— Andy Kroll (@AndyKroll) April 18, 2023

Sorry, but libel law doesn’t impose a “death penalty” on corporations (or people), and doesn’t exist to “existentially” punish companies you don’t like. Nor, despite what you think due to movies and TeeVee melodramas, do the courts deal in “truth.”

Fox doesn't admit it lied; it "acknowledge[s]" the court's ruling that it made false claims.

Fox spins the settlement as evidence of its "journalistic standards."

And it complains about the "acrimony of a divisive trial" — a line I'm shocked ever saw the light of day. 6/x

— Andy Kroll (@AndyKroll) April 18, 2023

Timothy McVeigh never admitted he was wrong, either. But he was prosecuted to the full extent of the law. The court could never have forced him to recant his vile views.

Make no mistake:

Dominion & its lawyers did a real public service.

They unearthed and publicized emails, text messages, and other documents exposing Fox's inner workings and its shoddy 2020 coverage.

We know ~so much more~ about how Fox works now.

And we have this gem: 8/x pic.twitter.com/JSv8KySlGQ

— Andy Kroll (@AndyKroll) April 18, 2023

The Rich family's lawyers asked this:

How do you calculate damages and design accountability in a way that helps repair the truth?

Put another way, what would it cost to, say, create and broadcast a media campaign that corrects a viral lie?

Here's what I wrote in my book: pic.twitter.com/nzVKbpM3ts

— Andy Kroll (@AndyKroll) April 18, 2023

How do you change Timothy McVeigh’s behavior? Or less dramatically (because FoxNews didn’t blow up a building and kill people), how do you change Donald Trump’s behavior? The trial of Jean Carroll’s suit won’t do it. Prosecutions won’t even block Trump from running for president, or winning the office again. Prisons ostensibly exist to change behavior, although all they really do is punish. Civil suits exist only to recompense for injuries: to reputations or to persons or businesses. There is no recognized remedy at law that enforces a change in behavior. Criminals can go to prison and come out and continue to pursue criminal activities. Civil defendants can lose lawsuits and still continue to insist they did nothing wrong. In fact, I’d argue that forcing a company or an individual to recant their lies as a matter of law, would run afoul of both the 1st and 13th Amendments.

Contract law has a concept of “specific performance.” In a breach of contract action the defendant can be forced to perform on the contract. That’s why Elmo ended up buying Twitter. But an actor can’t be forced to perform. The plaintiff’s only recourse there is monetary damages. You can’t make a slave of the actor.

Now Dominion could have pressed Fox into making an on-air statement; but they didn’t.

"I think the apology is a little bit the wrong thing to be asking for, I think what we wanted is the truth to get out there," Shackelford said. "A forced apology isn't worth much, and they're adults, they know how to do this, if they would just tell their viewers the truth about what happened in the 2020 election -- that's what we're after. They still have the opportunity to do that. In depositions we asked them why they would not do that, and they said it was old news now, which is ironic, but it is what it is."

That’s the lawyer for Dominion. Yes, it’s a lawyer’s answer to the question, but this was always a legal matter. Dominion sued for its damages. It didn’t sue “to defend democracy.” If it had the court would have thrown the case out, and been right to do so.

As for a “viral campaign,” those happen; they aren’t made. You can’t engineer it; only hope for it. Rush Limbaugh eventually “went viral,” after many years on AM radio. Several progressives tried to do the same, counter-programming Limbaugh. None of them succeeded. A libel suit ended Alex Jones’ career. But he wasn’t a major communications corporation.

Maybe there should be a “death penalty” for corporations for “crimes against democracy.” But I can’t see that being anything but political in the hands of Gym Jordan or James Comer. As for a “viral campaign of truth,” well: you can lead a horse to water.

But you can’t make him think.