Rather than suffer the embarrassment of a trial that would have exposed the mendacity of its stars and even its founding chief, last week Fox News paid $787.5 million to Dominion Voting Systems for promoting the outrageous falsehood that Dominion had rigged the 2020 presidential election against Donald Trump. It was the largest defamation settlement in history, but it included no requirement that Fox publicly apologize for its deliberate deceptions.
Instead, Fox merely acknowledged that “certain claims” it made about Dominion were false. “This settlement,” Fox added in the very next sentence. “reflects Fox's continued commitment to the highest journalistic standards.” Those standards do not, apparently, include telling Fox’s own viewers much about the settlement. On Tuesday night, when the settlement was the lead story on all the major news networks, Fox devoted just six minutes and 22 seconds to the topic, across three segments. Fox’s prime-time hosts, who had knowingly perpetrated the election fraud, uttered not a word about the settlement on their programs.
Well, how should a news organization that practices the “highest journalistic standards” have responded to a libel suit? As an editor who successfully defended seven libel suits in the course of my career, I suppose I’m something of an authority on this subject.
Herb Lipson’s regret
The guiding principle— at the New York Times as well as my own papers (an Indiana daily paper in the ‘60s and the Philadelphia weekly Welcomat in the ‘80s)— is this:
If you’re sued for libel and you believe you’re right, don’t settle. Fight the suit in court. If the court rules against you, pay the judgment but don’t apologize. Don’t let judges and lawyers put words in your mouth that you don’t believe. Otherwise, you’ll forfeit your most valuable asset— which is not money, but your credibility as an honest and independent observer of events.
But suppose you realize that your published words were false and/or defamatory? In that case, correct the error as soon as it’s pointed out to you. Issue a public apology, whether you’ve been sued or not. Try to make amends with the injured party, whether lawyers are involved or not. If you respond only to lawsuits, you put your organization at the mercy of anyone who can afford high-powered lawyers.
The key to these lofty ideals is a combination of a strong backbone and adequate libel insurance coverage, which both of my publications enjoyed. It isn’t yet clear what sort of coverage Fox News possessed. But consider one case of a publication that lacked it.
In the early ‘70s (before I worked there), Philadelphia Magazine was sued for libel by a nightclub owner whom the magazine had called a cocaine dealer. Philadelphia’s publisher, Herb Lipson, lacking insurance and fearing he would be consumed by legal expenses, settled the case against his better judgment and published an apology he didn’t really believe— a decision he regretted (and subsequently complained about repeatedly in his column, in violation of the settlement agreement) for the rest of his life.
Up against Rizzo
On the other hand, in 1982 Philadelphia’s ex-mayor Frank Rizzo sued my weekly Center City opinion paper, the Welcomat, for $11 million— a lot of money in those days— over an essay that drew some analogies between Rizzo and Adolf Hitler. Such an expression of opinion about a public figure is absolutely protected by the U.S. Constitution, no matter how offensive Rizzo might have found it. But had the Welcomat not been insured (with a $1,000 deductible), we might have caved. On the contrary, my publisher, Susan Seiderman, and I never even discussed settling the suit: On this issue, our duty to the principle of free speech was obvious.
Rizzo’s lawyer, Ben Paul, apparently assumed that the case would be settled and he would receive one-third of the payout as his contingency fee. As the case wound its way through four years of motions, counter-motions, depositions and delays, Paul offered to settle Rizzo’s $11 million suit for $1 million. When we declined, he reduced the offer to $100,000. Ultimately, he came down as low as $30,000, but still our answer was no. For us, it was a matter of principle; and our insurance company, which was footing all those legal bills, supported our stance: By standing up to a prominent figure like Rizzo rather than settling, our insurers reasoned, we’d discourage similar groundless suits in the future. Like any good journalist, our insurers too possessed the necessary backbone. God bless them for that.
(These cases as well as my other libel suits are described in greater detail in my recently published memoir, The Education of a Journalist.)
One-third of an apology
It’s not yet clear precisely how Dominion’s lawyers will be compensated for this case. A straight one-third contingency fee might explain why they neglected to seek a public apology from Fox.
I’m reminded of an incident back in the ‘70s, when my younger daughter suffered a minor injury on a defective ride at an amusement park. Perhaps for legal reasons, the park’s operators refused to acknowledge fault or express any regret. A lawyer offered to represent us on a one-third contingency fee basis. Figuring I had nothing to lose, I hired him. When the negotiations stalled, I told the lawyer, “I don’t really want money from these people. I just want an apology.”
“Yeah,” he replied, “but how am I going to get one-third of an apology?”
A prostitution rumor
In its response to the Dominion suit, Fox News argued that it never publicly endorsed Trump’s rigged-election fantasy; it merely reported what he and his supporters were saying. But of course, a legitimate news organization would make an effort to verify those phony claims before airing them.
Portland, Indiana, where I edited the daily Commercial Review in the ‘60s, was a small town where rumors spread as quickly as they do globally today on the Internet. In one case, it was confidently reported to our staff that five prominent Portland women had been arrested for prostitution in Fort Wayne, an hour’s drive to the north. This notion was as ridiculous as Trump’s claim that Dominion stole his election, but in both cases, many people believed the myth because they wanted to. But unlike Fox News in 2020, my little paper declined to dignify the rumor by reporting it. Instead, I spent the better part of a day tracking down the origins of the rumor, then published a report exposing the rumor for the nonsense that it was.
That’s why we have journalists in this world: to perform the hard work of separating fact from fiction, rumors from real news. Is it too much to ask America’s most-watched cable news network to observe the same “high journalistic standards” as a county seat paper in Indiana?
Like all human institutions, news organizations often make mistakes. But Fox’s coverage of Dominion was no innocent error. As Fox’s own internal correspondence revealed, its leading commentators intentionally broadcast disinformation that they knew to be false.
Most religions, not to mention most therapists, recognize that voluntary confession is the first step on the road to rehabilitation and forgiveness. For all the hundreds of millions it shelled out last week, Fox News has yet to take that step.
“A man should never be ashamed to own he has been in the wrong,” Alexander Pope observed more than 300 years ago, “which is but saying in other words, that he is wiser today than he was yesterday.”
Are the folks at Fox News any wiser today than they were yesterday? I wonder.
Fox knows what it did; they just refuse to admit it to their very loyal...and stupid...viewers.
Given the size of Fox News, the absence of the effective use of fact checking is, in my mind, a sign of malice.