Fox News has a couple of problems, one is legal and the other reputational.
Dominion, the voting machine company, is suing Fox for promoting conspiracy theories that the company’s machines stole the election from Donald Trump. The first problem Fox has is the classic problem for defendants in a defamation or libel case. People are often careless and write things in emails that they shouldn’t. If you are a journalist, you can get sued for defamation or libel. It is hard to win a defamation or libel case if you are even a somewhat public figure unless you can prove that the journalist knew or should have known easily enough that something defamatory was false.
In the old days this was hard, because we aren’t mind-readers. Today, it is not hard. You just ask for all the email and text messages, which are helpfully located on company servers for a long time. This is what Dominion did. And these emails and texts show that Fox journalists and executives were aware that the Dominion stuff was baloney and that they believed that the folks making these claims were bonkers.
So, when and if the trial takes place, the Dominion lawyers will put a parade of Fox journalists and executives on the stand and ask them to read the particularly incriminating emails and texts. It will be astonishing legal theater, to watch Murdoch, Carlson, Hannity and Ingraham and dozens of Fox executives read their own 2020 emails and texts showing that they knew that they were putting defamatory stuff on the air about Dominion that they knew was untrue, but they put on the air because they were concerned about ratings. So they defamed Dominion for money. It is one thing to attack Joe Biden because your viewers like that. It is another thing to defame a private business by claiming that its core product – voting machines – is fraudulently fixing an election against Donald Trump at the behest of foreign dictators. And then you are texting and emailing that you know these claims to be false, but you are letting them on your airwaves regardless because you’re worried that a crazy competitor will steal your audience if you don’t. I have been a journalist for 50 years and I have never seen a plaintiff go into court with as much malice proof as this.
Of course, the other problem Fox has is reputational. Not what you might thnk. Fox doesn’t care what liberals think. That’s not the reputation it is worried about. The emails show that Fox journalists, hosts and executives did not believe something that many of its viewers believed. They did not believe that Donald Trump won the 2020 election. They did not believe his claim that there was widespread fraud. They really, really did not believe this. But when Fox started getting pushback after the election from viewers, and losing viewers, it panicked, and tried to get in line on the conspiracy claim, which is how it is now in a legal pickle with the Dominion lawsuit. But it should be obvious to the Fox audience from the emails and texts that Fox just started putting the conspiracy peddlers on the air because it was losing ratings, not because it believed the claims. The audience now sees – in internal communications from its most prominent stars – that it makes big editorial decisions not out of conviction or core values, but because it is afraid of losing viewers. In that way, Fox is no different from any conservative politician in a red district who lives in perpetual fear of a primary challenge from a more conservative politician. That is why Republican politicians instinctively move to the right every time a primary looms. That is what Fox was doing after the election, facing a primary challenge from Newsmax. But its willingness to defame Dominion was all for show. Fox’s heart wasn’t in it, and when push came to shove, it folded. So it defamed Dominion, but it also showed its hardest-core viewers that it wasn’t really with Trump or them. It has been trying to dig out of this hole with them for nearly 3 years, even as it has defended itself in the Dominion lawsuit. It is not going to get better for Fox if this goes to trial. It will only get worse as all these emails and texts get aired and aired and aired.
Murdoch 30 years ago realized that there was a market for a conservative news channel on cable. He wasn’t the first to discover this market. Rush Limbaugh got out there on radio. But the challenge for Murdoch has always been how to satisfy his audience while staying out of trouble from a liability standpoint. That has been a hard job, because the conservative ecosystem to the right of Murdoch has become more conspiratorial, and has chipped away at his audience. The 2020 election brought this tension to the forefront, and Murdoch lost control of the situation. His airwaves were suddenly dominated by conspiracy theorists going after Dominion. And, like I said, this wasn’t just some lefty politician. This was a company with revenue and customers and a business that was being harmed. Dominion lawyers repeatedly warned Fox that it was in legal peril if it didn’t stop. Typically, there is something called a lawyer letter that goes to a news outlet when it publishes or is about to publish something that the subject considers defamatory. It is intended to put the news outlet on formal notice that it risks being sued. News outlets take just one of these letters seriously. I have had a number of meetings over the years to discuss lawyer letters, and whether we were on solid ground with our reporting. It is a serious moment for serious discussion, often with your own lawyers. Dominion sent hundreds of these letters to lots of people at Fox, with the facts. Maybe Fox thought Dominion wouldn’t sue, but jeez, Dominion was doing everything except renting billboards with the letters, 10 feet high, across from Fox News headquarters saying: “We are going to sue if you keep this up.”
Fox’s lawyers, in the days after the election when the Dominion conspiracy theories started emerging from the Trump camp, should have sent out a couple of memos. One should have warned all relevant employees to refrain from emailing or texting about the Dominion conspiracy claims by folks appearing on Fox. They should have anticipated that because Dominion was a company getting defamed, that there would be lawsuits and discovery. But they didn’t, and so everyone at Fox was emailing and texting their innermost thoughts to each other, as if they had never had Communications Law 101 in journalism school, which is quite possible. The lawyers also should have demanded a meeting post-haste with Murdoch and Fox executives as soon as the Dominion thing started and said this is very dangerous territory here, and we should be very careful about booking any of these conspiracy theorists and how we cover them, and what opportunities we need to give Dominion to respond. In fact, don’t book these Dominion conspiracy people at all. Report on it maybe but don’t put these people on the air.
My only question right now is why the Fox lawyers haven’t persuaded the Murdochs to settle. Regardless of the outcome of this litigation, the trial is going to be difficult for Fox. The publicity over the past few days is nothing compared to what a multi-week trial will look like. A parade of its biggest stars are going to testify under oath that they believed Joe Biden was legitimately elected president in November 2020 and Donald Trump was wrong, and that there was no evidence that Dominion had rigged the election against him. They are going to have to do that because Dominion has all of their emails and text messages in which they said that privately to each other. Fox executives will have to discuss under oath how their concerns about ratings declines caused them to pressure their own reporters not to report accurately about the Dominion conspiracy theories. It will be brutal. Of course, Dominion may not want to settle. They may want to grind Fox News into the dust, and the company has the emails and texts to do that.