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Back in the spring of 2016, Donald Trump and Hillary Clinton were about to face off in their first debate. My wife and I invited some friends and relatives over to watch. An older aunt, a full-on MAGA supporter and Fox News watcher, came in and plopped down on the couch. “I hear CNN isn’t even going to broadcast it!” she exclaimed.
The idea that CNN would not be televising the debate was of course pretty dumb. Indeed, CNN was playing on the TV in front of her at the time.
Donald Trump and Hillary Clinton during a 2016 presidential debate.Credit: AP
A moment like that illustrates the bizarre effect Fox News has had on American life. The bubble that its viewers live in is filled with an ever-changing melange of lies, obfuscations, half-truths, conspiracy theories and other miscellaneous nonsense. At a certain point, the viewers became impervious to correction or – as in that case – embarrassment.
There’s a lot of talk these days about polarisation in American life. Less often noted is that the vast part of that polarisation is caused by a significant chunk of the country having gone slightly nuts. And Fox News is their standard-bearer.
In this context, a defamation trial that begins this week in Delaware has become a proxy war at the cultural dividing line that currently dominates American life. On the one side: Fox News, the house organ of a brazen and increasingly anti-democratic movement. On the other: just about everyone appalled at the vulgarity, know-nothingism, bad faith and crypto-fascist tendencies rising on the American right.
The case itself is brought by a company that makes voting machines, Dominion Voting Systems. After Donald Trump lost the 2020 election, he and his proxies unleashed fusillades of misinformation on a variety of subjects. Dominion was actually just a bystander caught in the crossfire. They made up a lot of lies about the company – that it had been formed in Venezuela; that this or that Democratic operative backed it or worked there; that the company had bribed officials and manipulated vote counts.
Fox News broadcast enormous amounts of it – but none of it was true. Dominion is suing, saying Fox defamed it and hurt its business.
Legal experts agree this is a blockbuster defamation case. The First Amendment is strong protection for journalists. Crudely put: The media can make mistakes. But journalists can be held liable if they display what is called “reckless disregard” for the truth. That’s the classic model for defamation cases in the US – a writer and an editor take their eye off the ball or, once in a while, just make a series of inexplicable decisions. (That’s what happened in a notorious defamation debacle for Rolling Stone a few years ago.)
But in this case, it is indisputable that Fox as an entity made Dominion a punching bag for months on a number of different programs – and staffers at all levels of the network rebuffed Dominion’s attempts to set the record straight.
A slew of highly embarrassing internal texts and emails from inside Fox released in the run-up to the trail have shown that, behind the scenes, a significant slice of the company – from lowly producers, to household-name show hosts, to the company’s executives, all the way up to Rupert and Lachlan Murdoch – were aware the outlandish charges they were airing were being challenged.
We can see staffers at the network, including star host Tucker Carlson, calling the claims – their word – “reckless”. That’s a legal nightmare for the network. Remember, the legal standard is literally “reckless disregard”. It’s the defamation-lawsuit equivalent of going into a store wearing a T-shirt that reads, “I’m here to shoplift something.”
It turns out that top execs and even Carlson himself nonetheless worked to punish attempts to correct the record, on the grounds it would hurt the network’s ratings. In what may go down in history as one of the most devastatingly consequential things ever said by an American CEO, the top exec at Fox, Suzanne Scott, sent an email to subordinates saying, “This has to stop now.”
Was she talking about the lies Fox was broadcasting? No. She was complaining about reporters who were fact-checking Trump’s election-fraud claims. There’s only one thing worse than “reckless disregard” in a defamation case, and that’s publishing something with “knowing falsity”.
There’s always a chance the case could be settled on the eve of trial; late Sunday evening US time, the judge pushed the opening of the trial back a day, fuelling rumours to that effect. Indeed, why hasn’t Fox settled this case already? The pre-trial revelations have already been extraordinarily damaging. But there are many moving parts here. Other, similar suits against Fox are coming. A settlement would almost certainly require Fox to make voluminous on-air corrections and humiliate its hosts.
Both Lachlan and Rupert Murdoch are personally involved in the suit; this debacle happened on their watch, and surrender will tarnish them specifically. A stockholder revolt could result. Dominion itself, smelling blood in the water, may have rebuffed settlement inquiries.
Those are the factors that make this a trial that will go down in history. I should mention another aspect that makes it essential watching over the next few weeks. Those who want Fox held accountable for this defamation, and countless others who’ve endured its toxic effect on American life for decades, are feasting on this banquet of schadenfreude with no little enjoyment.
The judge’s several pre-trial rulings, each of them highly detrimental to Fox’s defence? An intriguing amuse-bouche. The release of all those embarrassing texts and emails? A delightfully assertive and fulfilling entree. The main course starts this week.
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