The Dominion Voting Systems defamation suit against Fox News was settled for $787.5 million

in the beginning

of a lawsuit Tuesday. Based on a series of previews of the damning evidence against Fox developed during the pre-trial discovery, the lucrative payoff wasn’t surprising: The case Dominion was prepared to present was more than devastating.

The outcome underlined the tension between the public value of litigation and the private interests that drive litigation. Dominion had a great case against Fox in which many eagerly awaited some degree of accountability for the network’s conscious support of the lie that Donald Trump had won the 2020 election. But the company’s $1.6 billion damage claim seemed

high.

The case was thus ripe for a settlement with Fox paying a premium to avoid a litigation debacle, serving the interests of the parties more than society.

Fox got off pretty lightly considering the risks involved. In most accounts, it can absorb the settlement quite easily. It’s a reasonable price to pay to avoid the immense damage to his reputation and consequently his bottom line that an extensive, detailed account of his knowing lies would have caused.

Even before the trial began Tuesday, it was clear Fox had good reasons to avoid it. Delaware Supreme Court Justice Eric M. Davis had already ruled that the on-air claims that Dominions voting machines altered the results of the election were false, jumping the company over the plaintiffs’ first hurdle.

That would also have given Dominion a formidable advantage over the question the parties would have contested at trial: whether Fox sent out the statements in question with actual malice, meaning it either knew they were false or recklessly ignored the question. That’s because many of the statements, from both Fox hosts and guests whose claims were presented as well founded, are ridiculous on their face. The idea that Fox didn’t know they were cheating would strike any reasonable juror as far-fetched.

If the trial had gone ahead, the jury would have heard even more reasons to actually find malice. Some of the most damning evidence has been behind-the-scenes emails and texts in which staunch network leaders like Tucker Carlson and Laura Ingraham admit they know the Big Lie is just that. Even News Corp. Chairman Rupert Murdoch acknowledged that some of the network’s personalities had crossed a line. So it’s no wonder Fox settled the matter rather than let Murdoch and others take the stand.

Moreover, the defense that the company had put forward publicly was disappointing. One was to claim that Dominion picked about 20 ugly statements that distorted Fox’s generally defensible behavior. But the judge correctly ruled that defamation had to be analyzed statement by statement, making Fox’s other legally irrelevant statements. The jury’s attention would have been on the offending lies, not the less culpable behavior Fox wanted to highlight.

Fox’s other prominent defense was to wrap itself in the 1st Amendment, arguing that the case threatened to protect the media’s absolute right to cover the news. But there is no such right, and Fox’s claim was not only false, but outlandish. In the groundbreaking press freedom case New York Times v. Sullivan, who created the true standard of malice, made it clear to the Supreme Court that the First Amendment exists to promote truthful reporting in support of an informed electorate. The only reason to tolerate false reporting without actual malice is to give the press breathing space to aggressively pursue the facts without fear of liability for innocent errors.

Far from serving the purposes of the 1st Amendment, Fox’s knowing and reckless publication of lies undermined press freedom and had a horribly corrosive effect on the country. Even settling for hundreds of millions probably saved the company money in the long run compared to the financial fallout and reputational damage of a trial train accident.

Dominion also had reason to settle. While the case against Fox was as strong as any accuser for defamation of memory, his claim for damages was less strong given the company’s much smaller estimated net worth. Fox may have paid damages to avoid the sting of the lawsuit and an unfavorable verdict.

Particularly in light of follow-up litigation such as this, the motivations of the parties, including those of the already exhausted legal teams, tend to realign in favor of a settlement. This is especially true when serious conversations begin.

A Dominion attorney argued in the aftermath that the settlement amounted to a resounding endorsement of truth and democracy, adding that truth has meaning. Read have consequences. And the company wasn’t alone in seeing some sort of triumph against the Big Lie. But all Fox offered besides the payout was a lackluster acknowledgment of the court’s rulings that found certain claims about Dominion to be false. In the absence of any convincing remorse, Dominion’s claim of vindication seems likely to be quickly forgotten.

It was Fox’s giant checkbook, not a civilian victory, that allowed the Dominion to make an offer it couldn’t refuse, satisfying the interests of the prosecution regardless of those of the public. This is an inevitable consequence of a contradictory system based on private party calculations.

the case

also served

the public interest by exposing Fox and his personalities through discovery, but not nearly to the extent it could have through a revealing and damaging process. Much of the country looked to Dominion to justify fundamental transgressions against the political body by Trump and his facilitators. Now we have to look elsewhere.

Harry Litman is the host of the

Talking Feds podcast

.

@harrylitman