It’s hard to believe that it was only one week ago today that we buckled up for what was to be the media trial of the century — a six-week showdown between Dominion Voting Systems and Fox News with $1.6 billion and, perhaps, the First Amendment at stake.
It was over before it really even started with the two sides reaching a settlement. Fox News will pay Dominion $787.5 million.
Last week, we asked our readers if there were any leftover questions from this case and they responded with two main themes.
The first was phrased this way by one Poynter Report reader: “If this had gone to trial, could you have pictured a scenario where New York Times Co. v. Sullivan got overturned?”
I asked my colleague Kelly McBride — Poynter’s senior vice president and chair of Craig Newmark Center for Ethics and Leadership, as well as the public editor for NPR — to answer this question. Here is what she wrote:
Unlikely. In the Dominion case, both sides agreed that actual malice was the standard by which the case should be decided.
A quick primer on actual malice: In New York Times v. Sullivan, the Supreme Court said that in order for public figures like Dominion to claim they were libeled and defamed by someone publishing false information, they had to prove that the person who published the content actually knew that it was false, or had substantial doubts it was false and then published it anyway. It’s all about what was in the decider’s head.
Many conservatives, like Florida Gov. Ron DeSantis, believe this standard is almost impossible to prove and sets the bar too high for determining libel of a public figure. (This only applies to very powerful people like elected officials. Private people simply have to prove that a journalist was negligent in publishing false information.)
The only way Sullivan could have been overturned was if Fox beat the “actual malice” standard at the jury level, meaning that Dominion couldn’t convince the jury that the Fox anchors actually knew the statements were false. If Dominion appealed all the way up to the Supreme Court, they may have argued that if the evidence they produced in discovery doesn’t prove actual malice, then it is an impossible standard. To strip “actual malice” from the libel laws, the justices would have to do two things: One, agree with the lower court’s ruling that Fox clearly did broadcast lies about the 2020 election. And, two, decide that Dominion shouldn’t have to prove the state of mind of the anchors and producers at Fox who decided to air the lies.
In theory, the justices are apolitical. But in practice, that doesn’t seem to be the case these days. Justice Clarence Thomas and Justice Neil Gorsuch are the two voices on record as open to overturning the actual malice standard. Would Thomas sign on to a ruling that directly hurts Fox and concedes that the 2020 election was not stolen from Trump? Would four other justices do so? Anything is possible, but it’s hard to imagine what the coalition would be.
If Fox had lost the jury trial and then appealed, the justices would have had to make the bar for actual malice even higher, in order to reverse the jury verdict. Or, they would reverse the ruling on some other grounds, rather than the actual malice standard.
My thanks to Kelly McBride for that answer.
Here’s a question we got from Facebook: “By settling its defamation suit, Fox has escaped being held accountable for publishing malicious stories that they knew to be untrue, that harmed individuals and also harmed my community at large. Even in its silence, the courts have set this outcome as the legal standard for publishers and journalists. Can publishers and journalists also lie to me whenever they feel like it?”
Let me try to answer that by first saying that Fox News really didn’t escape accountability. While there was no public apology that many wanted, Fox News did pay an incredible figure — more than $787 million, which is believed to be the largest publicly disclosed monetary settlement ever in an American defamation action, according to The Washington Post. The judge in the case, as well as Fox’s own statement, acknowledged that Fox News aired lies about the 2020 presidential election.
Diehard Fox News viewers likely will continue to watch it. And those who don’t like Fox News will continue to dislike it. But this Dominion case is a dark and embarrassing era for the network and its reputation was shredded — likely beyond repair for most news observers.
So, no, publishers and journalists cannot lie whenever they feel like it. As Dominion has shown in this case, there are major costs for the kind of irresponsibility we saw from Fox News.
Finally, several readers reached out with some version of this question:
Why didn’t Dominion demand an apology from Fox News?
I’ll let John Poulos, co-founder and the chief executive of Dominion Voting Systems, answer that one. In a guest essay for The New York Times, Poulos wrote about the settlement agreement. He wrote, “What was missing was an apology, so I myself drafted one for it that I thought would be appropriate to include. When I read it to my business partner, he asked what I thought about mandating Fox issue an apology that would be forced, insincere and limited. At that moment, I threw my draft in the garbage.”
Poulos wrote that Fox News acknowledged what Dominion needed Fox to acknowledge: spreading false claims comes with a huge price tag.
“Even so,” Poulos wrote, “nothing can ever fully compensate for what happened. The stain on my company’s reputation and our employees’ and customers’ emotional scars can only fade. They won’t ever vanish. If we could, we would trade it all in a heartbeat to go back in time to get our reputation back. But I take solace in the fact that the public has seen the enormous mountain of evidence proving what Fox did, and Fox paid dearly for it.”
One more question
The Associated Press’ excellent media reporter David Bauder addressed one other question in his story, “Will Fox settlement alter conservative media? Apparently not.”
Bauder writes, “Experts doubt the settlement will lead to much of a course correction in conservative media, save for a little less specificity to avoid future lawsuits.”
Bauder has a slew of details in his story, which I strongly recommend.
An incitement of violence
Appearing on Sunday’s “Inside with Jen Psaki,” New York Democratic Congresswoman Alexandria Ocasio-Cortez said it “would have been better” if the Dominion-Fox News trial had gone to verdict.
Ocasio-Cortez told Psaki, “What would have been best for the country, would have been to demand (an apology) and to not settle until we got that.” She added, “We have very real issues with what is permissible on air. We saw that with Jan. 6 and we saw that in the lead-up to Jan. 6 and how we navigate questions — not just a freedom of speech but also accountability for incitement of violence. This is the line that we have to really explore through law as well.”
Ocasio-Cortez said, “When you look at what Tucker Carlson and some of these other folks on Fox do, it is very, very clearly incitement of violence. Very clearly incitement of violence.”
The consequences of right-wing media
The grandson of the white Kansas City man who shot a Black teenager for knocking on the wrong door said he “wasn’t shocked” when he heard the news, adding, “I believe he held — holds — racist tendencies and beliefs.”
Andrew Lester, 84, shot 16-year-old Ralph Yarl in front of his door two weeks ago. Yarl was trying to pick up his younger siblings, but knocked on 1100 NE 115th Street instead of 1100 NE 115th Terrace. Lester has been charged with two felonies. Yarl is recovering at home.
Among the disturbing comments Lester’s grandson, Klint Ludwig, made to CNN about his grandfather was that right-wing TV was often “blaring in his living room.” He said he and his grandfather drifted apart after his grandfather embraced many of the conspiracy theories often stoked by right-wing media, including false conspiracies about elections, COVID-19 and Dr. Anthony Fauci.
Ludwig said, “He couldn’t handle being pushed back on, and at a certain point, we kind of lost touch. I think it was more of his choice than mine.”
Breaking news: ‘Inappropriate relationship’ leads to big NBCUniversal resignation
Jeff Shell in 2014. (Photo by Rob Latour/Invision/AP, File)
In major breaking news on Sunday, NBCUniversal CEO Jeff Shell has left the company following an investigation into a complaint of inappropriate conduct. In a statement Sunday, Shell said, “Today is my last day as CEO of NBCUniversal. I had an inappropriate relationship with a woman in the company, which I deeply regret. I’m truly sorry I let my Comcast and NBCUniversal colleagues down, they are the most talented people in the business and the opportunity to work with them for the last 19 years has been a privilege.”
The New York Times’ Benjamin Mullin reported that an inquiry began in recent weeks when the woman involved in the relationship came forward with a complaint.
There are no immediate plans to replace Shell.
In a joint memo to staff, Comcast CEO Brian Roberts and Mike Cavanagh, president of Comcast Corp., wrote, “We are disappointed to share this news with you. We built this company on a culture of integrity. Nothing is more important than how we treat each other. You should count on your leaders to create a safe and respectful workplace. When our principles and policies are violated, we will always move quickly to take appropriate action, as we have done here.”
There will be much more on this in the coming days.
Banned books
“CBS Sunday Morning” reporter Martha Teichner did a story Sunday about the battle over banned books. In her story, Teichner reported that according to the American Library Association, between 2020 and 2022, the number of individual titles banned went from 223 to 2,571 — a jump of 1,100%.
A group fighting to have certain books banned is “Moms For Liberty” — started in 2021 by two former Florida school board members. Part of the group’s goal is to endorse certain candidates in school board races across the country. One of the group’s founders said, “We want people who are serving in elected office that respect the role of the parent in a child’s life.”
The two were pretty vague in the reasons for the books they want banned, stating general reasons with scary-sounding buzzwords. “Books that don’t have pornography in them, let’s start there,” one of them said. “Let’s just put the bar really, really low. Books that don’t have incest, pedophilia, rape.”
Cartoonist Art Spiegelman is the author of the Pulitzer Prize-winning graphic novel “Maus” about the Holocaust. “Maus” has been banned in a Tennessee school district. Spiegelman told “CBS This Morning,” “Stop it! I mean, talk about Orwellian, you know? Calling this organization Moms for Liberty, when it’s actually for suppression, is about as basic as you could find in ‘1984,’ which I think is listed as a young adult novel still, and probably has been banned in lots of places.”
He added, “I think it’s possible for an adult to say, ‘I don’t want my kid reading that book in class.’ But to forbid the other kids from reading it or taking it out of the library? That’s not liberty; that’s suppression and authoritarianism.”
Pulitzer Prize-winning author Nikole Hannah-Jones, the driving force behind The New York Times’ “The 1619 Project,” had a reaction to the “CBS Sunday Morning” piece.
In a Twitter thread, which I will combine here, Hannah-Jones wrote, “Interesting choice by @CBSSunday — my favorite news show btw — to do an entire segment in book bans that didn’t feature one POC, that didn’t mention the racial makeup of Moms of Liberty, and that erased the role the targeting of 1619 Project has played in all of this. There is just one book targeted by federal legislation, and one book that Florida has specifically prohibited being taught in all of its public schools. I’ll also say this, allowing Moms for Liberty to frame this as a ‘parents rights’ issue is akin to when segregationists were allowed to frame opposition to desegregation as parents rights. Black parents exist. Parents of LGBTQ children exist. White parents who oppose this exist. In this reporting, the white in front of parents is allowed to remain silent. This has never been a parents rights issue and no journalist should let that go unchallenged. Where were the parents who oppose?”
King Charles
Charles Barkley and Gayle King. (AP Photo/File)
The long-rumored CNN show with Gayle King and Charles Barkley is happening. CNN announced over the weekend that King, co-host of “CBS Mornings” and Barkley, the NBA Hall of Fame and analyst on TNT’s successful and respected “Inside the NBA,” will host a live, weekly, one-hour prime-time show. It will be called “King Charles” and is expected to begin in the fall and run until 2024. It will air on Wednesday nights.
In a memo to staff, CNN CEO Chris Licht said, “This show will be an exciting new way we are delivering culturally relevant programming and unique perspectives to our audience, from two incredibly dynamic personalities.”
Variety’s Brian Steinberg wrote, “The move spotlights how big media companies are letting go of something they once demanded: talent exclusivity. King, who will continue to work for CBS News, is the latest news personality to diversify her roles at a time when traditional media is fragmenting, and the audiences that might flock to a specific correspondent have dwindled.”
Barkley, who is always hinting at retirement, is expected to continue on with TNT’s NBA coverage.
Appearing on TNT, King said, “What I think is so great for the both of us is that it’s live TV. To me, live TV is like working without a net. So whatever happens, happens. I like that.”
The show will talk about politics, but isn’t a political show, according to its hosts. Barkley said on the air, “We don’t want to say, ‘We’re a liberal, conservative, Republican, Democrat.’ That’s one of the things that’s already ruined television in general.”
With ratings down and prime time still in transition since Chris Cuomo was fired and Don Lemon was shifted to morning, CNN is looking for something (anything) to revive its nightly programming. I’m not sure a show with King and Barkely, as talented TV personalities as they are, is going to be the answer.
Media tidbits
- James Cordon brings his late-night CBS talk show to an end this week after eight years. Ben Mankiewicz profiled Cordon for “CBS This Morning.”
- The Daily Beast’s Corbin Bolies with “Lindsey Graham Erupts at CNN’s Dana Bash in Tense Exchange Over Abortion Access.”
- I was going to write about the latest regarding the blue verified check marks on Twitter, but it seems to be changing by the minute because Twitter’s owner, Elon Musk, is making a mockery of it all. Here’s a story from The Washington Post’s Annabelle Timsit and Marisa Iati: “These celebrities ‘subscribed to Twitter Blue.’ Except they’re dead.”
Hot type
- For Politico Magazine, Colin Woodard with “Gun Violence Is Actually Worse in Red States. It’s Not Even Close.”
More resources for journalists
- Subscribe to Local Edition by Poynter faculty Kristen Hare, to find out what’s working in local news and fresh opportunities for local reporters.
- Editorial Integrity and Leadership Initiative — (Sept. – April, 2024) (Hybrid) — Apply by May 15.
- Save the date! Poynter’s Bowtie Ball is Nov. 18 at the JW Marriott in Tampa, Florida. Get tickets.
- Sign up for Beat Academy (Now-Oct. 19) (Webinar series) — You’ll get tips, sources, inspiration and ideas to cover emerging newsroom beats. Enroll now.
Have feedback or a tip? Email Poynter senior media writer Tom Jones at tjones@poynter.org.
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