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Archival:
Welcome to the Lead. We have some breaking news for you. I'm Jake Tapper. Moments ago, we learned there is a settlement, a settlement in the high stakes trial between Dominion Voting Systems and Fox. Dominion was suing Fox for $1.6 billion, saying the trial was.
Archival:
Expected to be a barnburner. Check out the long line to get into the Delaware courtroom.
Archival:
Court documents revealing how the most prominent Fox News stars and executive privately mocked Donald Trump's election lies while promoting them publicly.
Archival:
Quote, The wind tells me I'm a ghost.
Nick Capodice:
You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy:
I'm Hannah McCarthy.
Nick Capodice:
And today we are talking about defamation, specifically a breakdown of the terms and legalities surrounding the recent lawsuit, Dominion Voting Systems versus Fox News Network. We are going to cover such salacious words as slander, libel, actual malice, and also some more benign sounding words like discovery and settlement.
Hannah McCarthy:
Okay, Nick, before we get into the definitions, we always say that we love talking about court cases because they are at their foundation stories. What is the story of this lawsuit?
Nick Capodice:
It seems like yesterday, Hannah, Election night, November 3rd, 2020. You remember that night?
Hannah McCarthy:
I do.
Archival:
It's been clear for a while that the former vice president is in the lead in Arizona and was most likely to to win the state. It has been in the category that we call knowable, but not callable for about an.
Nick Capodice:
It would take several days until the tally was final. But Joe Biden defeats Donald Trump in the election, getting 306 electoral votes to Trump's 232 and also winning the popular vote by about 7 million votes. And we're going to come back to President Biden's win in Arizona in a little bit Hannah Because it's a crucial part of this story. But about a week later, November 12th, the former president, Donald Trump, tweeted falsely that, "radical left owned Dominion voting systems", deleted 2.7 million votes for him nationally. Now, Dominion had created voting machines that were used in 28 states in this election, many of them swing states. And in the months to come, several hosts at Fox, including Maria Bartiromo, Tucker Carlson and Lou Dobbs, had guests on, most notably Sidney Powell and Rudy Giuliani, echoing that lie.
Sidney Powell:
President Trump won by not just hundreds of thousands of votes, but by millions of votes that were shifted by this software that was designed expressly for that purpose.
Nick Capodice:
And it was actually two falsehoods there. Not only did Dominion not throw out any votes, they are not by any stretch of the word, a radical left owned company. Dominion sued Fox News for defamation, and on April 18th, 2023, the case was settled out of court and Fox agreed to pay Dominion $787.5 million.
Hannah McCarthy:
That's a lotta million dollars. Nick, this is referred to as a defamation lawsuit. So what exactly is defamation?
Jane Kirtley:
Well, you know, they call it a defamation case. I think it's technically a libel case.
Nick Capodice:
This is Jane Kirtley.
Jane Kirtley:
I'm the Silha professor of media ethics and law at the University of Minnesota. I'm a lawyer. And I guess that's all you need know.
Hannah McCarthy:
So it's not a defamation case?
Nick Capodice:
No, no it is a defamation case. But defamation is the sort of bigger umbrella term. Defamation is a statement that damages somebody's reputation and it encompasses slander and libel.
Hannah McCarthy:
Slander being spoken words that harm someone's reputation and libel being written words that do the same thing.
Nick Capodice:
Exactly.
Hannah McCarthy:
But if these inaccurate claims were said by people, why is it libel?
Jane Kirtley:
Libel, at least traditionally is written something that's published in a newspaper, for example, or in a book. But as communications technology has evolved? Libel now generally includes speech that is published in any venue or by any means. It would include digital speech. It includes broadcast speech. Slander traditionally meant spoken, false and defamatory statements. The legal liability for those kinds of statements, and particularly the damages, was always much less than for libel, because the idea was that slander floats out into the ether and then it disappears. And if you're not standing there hearing it when somebody says it, then you won't know about it. And so therefore, your reputation will be harmed to a much lesser degree.
Nick Capodice:
But now that the things we say are recorded and broadcast, we often use the libel standards when we are talking about digital speech.
Hannah McCarthy:
What does someone have to show to claim somebody committed libel?
Jane Kirtley:
Libel suits are based on basically three things. One, that you publish something that is false. Two, that you publish something that is defamatory, which means that it harms somebody's reputation. And three, that you published it with some degree of fault.
Nick Capodice:
Now Hannah, Dominion, even though it is a company, is what we call a quote, public figure, someone or some elected official or some corporation that offers goods or services to the public or has sought some kind of spotlight. And First Amendment protections are different for public figures than they are for private figures who have sought no such spotlight.
Hannah McCarthy:
Nick, are we public figures?
Nick Capodice:
I don't know. Hannah. Are we? It'd be pretty great if we were.
Hannah McCarthy:
I don't know if it would be pretty great. You fewer protections. So if Dominion's a public figure, what does that mean for this case?
Jane Kirtley:
Public figures as well as public officials must meet a standard that's called actual malice. The standard was established by the US Supreme Court in 1964 in a case called New York Times versus Sullivan.
Speaker10:
In the testimony offered by the plaintiff, there were only two brief references to the petitioners. The first was that their names appeared in the advertisement, as published by the New York Times on March 29th, 1960.
Hannah McCarthy:
Oh, I know this case. It deserves a deep dive on its own someday. This is the one where the New York Times ran an ad criticizing the way police in Montgomery, Alabama, treated civil rights protesters.
Nick Capodice:
Yeah, and there were some inaccuracies in that ad, and the police commissioner, L.B. Sullivan, sued The New York Times for libel. In the court's unanimous opinion, Justice William Brennan wrote that the newspaper was not liable because they did not commit, quote, actual malice.
Jane Kirtley:
Now, people get very confused about the term actual malice because they assume that it means, oh, we have to show that the publisher hated you, but it's not the dictionary definition of malice. It's a very specific term of art. That means that you knew or had reason to know that what you published was not true. And that latter part had reason to know is often referred to as reckless disregard for the truth. So, for example, let's say you and I'm citing an actual case here, you're a reporter that's doing a story on a candidate shortly before an election. It's a it's going to be a terrible, devastating story that is probably going to destroy this person's candidacy. Someone comes to you before you run the story and says, I have an audio recording here that is going to prove to you that the allegations you're about to make are not true. And the reporter says, I don't need to listen to that. I don't need to hear that at And the Supreme Court said that kind of behavior could constitute reckless disregard for the truth because you had an opportunity to hear conflicting evidence and chose not to avail yourself of that. Now, this is not a formal set of legal principles that the court has established, but that's the kind of behavior that might constitute actual malice.
Hannah McCarthy:
So if this case went to court, the burden of proof would have to show that Fox One made inaccurate statements about Dominion voting systems, and two, knew those statements were inaccurate.
Nick Capodice:
Right, and three, that the statements damaged their reputation and cost them money.
Hannah McCarthy:
Did this false narrative cost them money?
Nick Capodice:
Well, Dominion sure claims they did, Hannah. They said that as a direct result of this false narrative, people pulled out on contracts to use their machines, a loss that they cited as 1.6 billion with a B dollars.
Hannah McCarthy:
Okay. So Dominion files a lawsuit, but who exactly are they blaming for the libel? Was it the hosts? Was it the guests they had on the show, like Giuliani and Powell, or was it the whole Fox Corporation?
Nick Capodice:
It's funny you should ask Hannah. The answer to that is yes. The case we're talking about today is Dominion V, Fox News Network, and it is one of many, many ongoing lawsuits related to these claims. There are lawsuits against the Fox hosts individually, lawsuits against Powell, Giuliani and others. And it's not just dominion, but there are other voting machine, companies like Smartmatic. All of these lawsuits are still around. But back to this specific lawsuit, $1.6 Billion in Damages claimed by Dominion from the Fox News Network. And now we move on to something called Discovery.
Jane Kirtley:
Before a case goes to trial. There's a stage that's called the pretrial discovery stage. And during that stage, both parties have the opportunity to ask questions of the other side to demand the disclosure of relevant documents and to call people in for depositions, which are opportunities to orally question them about things that are relevant to the case. In the course of the pretrial discovery, Dominion requested and got from Fox a long, long digital paper trail of exchanges between people from Rupert Murdoch, CEO of Fox, all the way down to the hosts and some of the journalists where they talked about the whole all the allegations about voter fraud and problems with election integrity.
Nick Capodice:
To call out one specific claim, Hannah Sidney Powell was on Maria Bartiromo's show on Fox and Powell. All said that she had evidence that Dominion had deleted or even flipped votes.
Sidney Powell:
We have so much evidence. I feel like it's coming in through a fire hose.
Nick Capodice:
And what we know now after the pretrial discovery is that Powell shared one source with Bartiromo and her producer just before the segment. It was an email. The author's name is not known. I encourage our listeners to read it. You can just Google exhibit 259 or you can Google one of the messages nicknames. It's called the quote, wind email. As the author claims the wind talks to her. Or the wackadoodle email as the author closes the message with the line that some of her claims are, quote, pretty wackadoodle. This email is full of unsubstantiated claims that Dominion machines were created to throw elections. But also in it, the author explains her visions, her prophecies, her dreams that she's had since she was a child. The author says that she was, quote, internally decapitated in a car accident in 1992 and that Supreme Court Justice Antonin Scalia did not die of a heart attack, but was killed in a human hunting expedition. Now, I'm not pointing all this out for comedic value. Hannah this is clearly a very troubled person. But I think you and I can agree that this kind of email is not the sort of evidence around which a new segment should center a conversation. And this was cited as evidence in Dominion's case. To prove this point, Fox was showing actual malice. They knew that this was not correct.
Jane Kirtley:
What the internal communications showed was, to say the least, many of the people at Fox were very skeptical of these claims, and some of them flat out called them insane wackadoodle. There's no proof of this.
Nick Capodice:
I'm just going to share a few of the internal communications among Fox hosts and producers that are expletive free here, Hannah. Communications that said, the claims by Powell and others were, quote, ludicrous is complete BS totally off the rails, and in all caps, mind blowingly nuts.
Jane Kirtley:
So all that was made available before the trial even began. And based on that record, the judge did something very significant when both Dominion and Fox had asked for an award of summary judgment, which would have meant that one or the other would have won and there would have been no trial, The court granted a partial summary judgment and specifically said that everything that Dominion was complaining about was indeed false. As a matter of law.
Hannah McCarthy:
As in the statements made on Fox were false.
Nick Capodice:
Yeah. And that word is important. Hannah. False. The word false has a deeper legal significance here. The trial was going to happen in Delaware, but the judge applied New York libel laws which said that if a statement was a mixture of fact and opinion, it's considered fact. It is not a false statement. Your opinion is protected under the First Amendment.
Hannah McCarthy:
Okay. So if I say aliens are real on the news, that is protected because it's just my opinion that aliens are real, which they are, by the way.
Nick Capodice:
Yeah You don't even have to say I believe aliens are real. You can just say aliens are real. But if you said aliens are real and I have proof of it and that proof is a screencap from Mac and Me, that would be false. And the judge said that all of the statements that were made on Fox were false. They were not opinion.
Jane Kirtley:
That was a huge loss for Fox because true opinion is absolutely protected under the First Amendment. But by declaring it and statements of fact and then going the next step, as the judge did, and saying and all this was false, the issue of truth or falsity was not going to be something the jury could consider at trial. The only thing that they would be asked to decide was whether Fox acted with actual malice.
Hannah McCarthy:
So what happened next? Did they go on to determine if actual malice was committed?
Nick Capodice:
Well, they didn't get there because right after that judge's determination, the lawsuit was settled. And I'm going to get into what that means right after the break.
Hannah McCarthy:
But before that break, a shout out to listener 50 plus personal trainer who left us this really nice review on Apple Podcasts, ending it with Today. I have become a monthly sustainer. I should have done this a long time ago.
Nick Capodice:
Oh, my heart swells hearing that. Hannah. Thank you. 50 plus. Personal trainer.
Hannah McCarthy:
Thank you. 50 plus personal trainer. If you enjoy our show, do what they did to support it with a gift in any amount at Civics101podcast.org.
Hannah McCarthy:
We're back. We're talking defamation, libel and all things tied to the Dominion versus Fox News lawsuit. So, Nick, you said that Fox settled.
Nick Capodice:
They did.
Hannah McCarthy:
How much did they pay Dominion again?
Nick Capodice:
$787.5 million.
Hannah McCarthy:
So that's a lot of money, but it's not quite the 1.6 billion they were asking for.
Nick Capodice:
That may be Hannah, but this was like most cases in the US, a civil case, not a criminal case. It was two individual parties engaged in litigation. The state was not involved.
Jane Kirtley:
The only penalties that can come out of a case like that would be monetary penalties.
Nick Capodice:
Again, that's Jane Kirtley, professor of ethics and law at the University of Minnesota.
Jane Kirtley:
That is that Fox, had it been found liable, would have to pay some money to Dominion. And exactly how much money that would be would be something that the jury would have to decide. They would not be bound by the amount of money Dominion asked for in its suit. That's just an amount of money that Dominion raised in the complaint. It doesn't mean that that's what the jury would have awarded had they gone all the way through trial. And I think a lot of people and the news we unfortunately contribute to this because they write headlines that always pick up on the amount that the plaintiff is asking for, but that can bear very little relationship to reality.
Nick Capodice:
However, were the case to have gone to trial, Dominion could have asked for Fox to pay the amount they say they lost due to these falsehoods, and they could have also asked for punitive damages.
Jane Kirtley:
Punitive damages are damages that are intended to punish somebody for really egregious conduct. And, you know, your listeners are probably familiar with this in other contexts, like in, say, a product liability action, you can seek actual damages for the physical harm that you suffer if your hospital bills, things like that. But if a jury were to decide that, say, the manufacturer of a drug or something like that had acted recklessly or irresponsibly or hadn't followed protocols, they could ask for punitive damages, which are designed to punish the defendant for improper conduct in libel cases in this country. Most big ticket libel damages consist primarily of punitive damages. And I think that could well have happened in the Dominion versus Fox case, too. But ultimately, my point is it's only money. Nobody was going to go to jail in this case.
Hannah McCarthy:
What I want to know is why Dominion settled. It sounds like Jane has been saying they had a really strong case. And the judge made it clear in pretrial that the claims made on Fox were indeed false, not just someone's opinion. Why give up on the bigger payout?
Nick Capodice:
Well, we don't know all the reasons why, especially since Dominion was quite openly mad about all this.
Jane Kirtley:
If a corporation can be angry. Dominion was angry at Fox.
Archival:
Fox has admitted to telling lies about dominion that caused enormous damage to my company, our employees and the customers that we serve.
Jane Kirtley:
And angry at them not only for the things they said specifically about their voting systems, but also all of their allegations, actions which appear to be baseless about problems with the integrity of the election in general. So I can't speak for Dominion, but my guess is that they made a calculation that was if we go to trial, we probably have a very good chance of winning, at least on some of the allegations, because the issue of whether Fox acted with actual malice or not would be something the jury would have to determine based on testimony of all of the Fox people that were going to be brought in to be questioned and to be cross-examined. Everybody from Rupert Murdoch on down.
Nick Capodice:
And no matter no matter how confident you are or how much evidence you have, nothing is certain when you get people on the stand.
Jane Kirtley:
It's a credibility issue, isn't it? And a juror is going to have to sit and listen to somebody like Sean Hannity or Tucker Carlson and make a judgment about whether that you're wants to believe them or not. And this is always risky, no matter how clear cut it might seem, based on the pretrial filings. When human beings get into the courtroom in front of 12 other human beings, there's always going to be a lot of factors that play into their assessment of whether there should be liable or not. My own guess is that had the case gone to trial, Fox probably would have won on some of the allegations and lost on others. And if that happened, then there's no doubt in my mind that the case would have gone on appeal and eventually Fox would have tried to take the case to the US Supreme Court regardless of the outcome. That would take years. I mean, literally years. And so if you're Dominion, you have to ask yourself, do I want to get caught in that kind of morass of uncertainty that could last for years? Or do I want to take the money and run? And I think that that was probably a big part of their decision to settle.
Hannah McCarthy:
How much is that settlement going to hurt Fox?
Nick Capodice:
Well, Jane said that they are going to have to pay that money, but we don't know how they're going to cover it. There is the possibility it could be covered by their insurance or they just have to swallow it and just pay $787 million.
Hannah McCarthy:
How much money does Fox have anyway.
Nick Capodice:
In 2021, Hannah Fox says annual revenue was about $13 billion.
Jane Kirtley:
To me, the big question is will this settlement percolate down to their loyal viewers and will they see this as essentially an admission that Fox was knowingly telling them lies? And I think it's very unlikely that that will happen for two reasons. One, because Fox is not covering this very much and most of their loyal viewers only watch Fox as their primary source of information. But number two, I think that Fox has been extremely careful in the statement that they issued, which we now know for sure was brokered during the settlement agreements. They have a very grudging acknowledgment that the judge found that the statements that they made were false. That's a very careful wording. It's saying this is what the judge found and it is suggesting to someone, at least like me, that they would say and on appeal, we would have asked an independent appellate judge to reconsider that ruling. And perhaps that judge would determine that those weren't Wolf statements. And there's nothing in their statement that they issued basically admitting to any kind of fault. It's almost like, you know, we got hit by a brick wall. We we published false information. It really wasn't our fault. They didn't say that in so many words. But but the point is, they didn't apologize or indicate that they had done anything wrong and in fact, went on to say in their statement that Fox has the highest journalistic standards. So they're still clinging to that. And that's what their viewers are going to hear. So, frankly, I don't think that in the sense of trying to punish Fox or teach Fox a lesson, I doubt that this case has done really much of any of that. And it was probably unrealistic to think that it would.
Hannah McCarthy:
I think my last question is why? Why would a news organization purposefully and frequently push a false narrative in the first place?
Nick Capodice:
Well, Jane says it all comes back to that one moment on that election night. 9:20 p.m. Mountain Time. Fox News did something before anyone else did.
Archival:
The Fox News decision desk is calling Arizona for Joe Biden.
Archival:
I think a lot of people still aren't totally sure about Arizona either. Some people think that may have been called a little too early.
Jane Kirtley:
After Fox called Arizona for Joe Biden, a lot of their viewers abandoned them and went to other alternative right wing sources like Newsmax, for example. And some of the communications indicated that that Fox sort of went into a panic, that they saw themselves being abandoned by their loyal viewers because they weren't telling them what they wanted to hear. So they quickly recalibrated and said, okay, so we're going to keep on having Sidney Powell or Rudy Giuliani come on and talk about the election being stolen, because that's what our viewers want to hear. And that is is a pretty troubling revelation, not because there's anything wrong with Fox wanting to make sure that its revenues and viewership stay up. That's what publicly traded commercial news outlets do. They want to keep their audiences. There's nothing in and of itself wrong with that. But if you're basically saying we'll tell any lie we have to tell to keep our audience, that's pretty bad. And I think it justifies the many other news organizations who have been pointing at Fox and saying, you know, other readers and viewers, you may not always agree with us, but at least we're not deliberately going out lying to you.
Nick Capodice:
Last thing for me, Hannah. I mentioned it earlier, but it bears repeating. This settlement is by no means the end of this story.
Jane Kirtley:
The Smartmatic case, which is another voting systems case, is is one that is still going forward. Smartmatic has made very clear that they've been following the Dominion case closely, taking notes, paying attention. And I am sure that they are not going to back off on their suit against Fox. So the story is not over yet. As long as that case and the many other cases against other people that appeared on Fox, like Mike Lindell from Minnesota, the Mypillow guy and any number of other people, those cases are still out there and they remain to be adjudicated on some day in the future.
Archival:
Mypillow CEO Mike Lindell, a vocal supporter of former President Trump and election denier, has been ordered to pay $5 Million related to his false claims over the 2020 election. Lindell had offered that amount of money to any cybersecurity expert who could prove his data wasn't really from the election. A software developer in Nevada did just that and then filed a lawsuit when he didn't get paid.
Nick Capodice:
That is defamation, Dominion and Fox. Who knows what the future shall hold. This episode was made by me Nick Capodice with You Hannah McCarthy. Thank you. Our staff includes senior producer Christina Phillips, producer Jacqui Fulton and executive producer Rebecca Lavoy. Music In this episode by Cycle hiccups, Blue Dot Sessions, Aiyo, Damma Beatz, Fabien Tell, Molife, Aks and Lakshmi, Tyra Chantey. Ben Elson, HoliznaCCo, Emily Sprague, Lobo Loco, Randy Butternubs, and the guy who REALLY won the election, in my heart at least, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.
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