This week, Dominion Voting Systems settled its $1.6 billion defamation lawsuit against Fox News Corp for $787.5 million. The settlement was reached just before lawyers for the two sides made opening statements in what was expected to be a blockbuster trial, but after Fox had lost nearly all of its pretrial motions.
It’s a good settlement for Fox, which has saved itself the embarrassment of a trial that would have further exposed the network’s lies and the many people at the network who likely knew they were lying. It is, frankly, ridiculous that Fox didn’t settle this case earlier, before much of the evidence against it leaked out, and for less money. Yes, $787.5 million is a hefty sum, even for a company worth over $16 billion, but it’s not crushing. (Plus, at least some of that sum will be paid by insurance carriers.)
The settlement is also good for Dominion—and even better for Staple Street Capital, the private equity firm that bought a controlling interest in the company in 2018 for around $38 million. Staple Street’s share of the settlement represents about a 1,500 percent return on investment in just five years. I’m told that capitalists find these numbers important, and I imagine most of them would sell their own 5-year-olds for a 1,500 percent return on effort. Plus, Dominion still gets to sell voting machines to states that aren’t run by fascists.
But the settlement is not good for American democracy. Fox News is arguably the most destructive force in US politics: 24 hours a day, seven days a week, it spreads right-wing propaganda and misinformation to millions of viewers and voters. Dominion had a real opportunity to expose Fox, drag its hate-making machine out into the open, put its executives on the stand, under oath, and force them to explain how they pushed the Big Lie while knowing it was, in fact, a lie. That didn’t happen, though. Dominion can put a price on its reputation, but you can’t really put a price on holding Fox accountable for what it’s done to democratic self-government.
So Fox paid and Dominion took the money, and now lots of people are disappointed. But the problem is actually bigger than the settlement—and that’s because, settlement or not, this is how the civil legal system is designed to work.
Civil litigation operates on the premise that money is the same as accountability. We have a criminal justice system that is supposed to mete out nonmonetary punishments to people who commit crimes. But Fox did not violate any criminal laws. Lying is not a crime, nor is spreading propaganda or misinformation, and most people reading this would probably agree with me that this is actually a good thing. The criminal justice system both over-criminalizes minor offenses and over-incarcerates people (especially poor people) found guilty of those criminal offenses. I don’t think we want to invent more crimes and throw more people in jail for violating additional laws. If we did criminalize lying, I guarantee that more poor people would end up in prison than Fox News executives.
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The civil litigation system, meanwhile, is supposed to handle wrongdoing, accidents, injuries, breaches of trust or contract, and everything else that doesn’t rise to the level of conduct punishable by incarceration. That system works on the belief that infractions can be commodified and justice can be achieved wholly through financial penalties. The civil system puts a price tag on everything. There are charts that you can look up that tell you how much your body parts are worth, depending on what state you are in when you lose one. Did you have your arm cut off at work? In Alabama, that’s worth $49,000; in Georgia, the same arm is worth $118,000. Employers in industries where arms are likely to be cut off budget for this.
The civil system isn’t designed to produce something even as simple and human as an apology. Apologies, or admissions of guilt, are reduced to their monetary value and priced into the settlement or damage award, the same as anything else. People wanted Fox to be forced, at a minimum, to apologize and clearly admit that it lied. Instead, the network released a carefully worded statement saying it “acknowledge[s] the Court’s rulings finding certain claims about Dominion to be false,” and moved on. I can’t know precisely how much money Fox kicked in to make that statement instead of something more apologetic, but I know it was an integer greater than 1.
While it might be easy to dunk on Dominion for selling out, it’s worth remembering that most people would make the same calculus. We see it all the time in wrongful-death lawsuits. There is a number—there is always a number—that a family will settle for, even in a case where some institution has contributed to the murder of their loved one. And, cards on the table, I have a price too. If Fox defamed me, I’d want to clear my name and force it to apologize and help save America. But there is a number Fox could put in my bank account that would make me “the brother who was defamed by Fox but now lives in Barbados, chilling with Rihanna, laughing about how our families never have to work again.”
If it sounds like I’m defending the civil litigation system, I’m really not. I think the system is broken precisely because it works on the capitalist brain-rot that posits that everything of value can be reduced to money.
Proponents of the system point to deterrence. They’ll argue that the threat of heavy monetary damages deters people, corporations, and institutions from behaving badly. And that’s true some of the time. Products, generally, are safer because of civil litigation. Lawsuits are the reason a “bag of glass” isn’t actually a kids’ toy. They’re also the reason your car doesn’t spontaneously combust and packs of cigarettes come with warning labels. I’m not opposed to civil lawsuits. They have their value. In some instances, civil litigation can spur a change in corporate behavior far more quickly than legislation passed by Congress, and that’s one of the reasons Republicans are always interested in protecting their donors and interest groups from civil litigation.
But when applied to the very wealthy, or the very poor, the deterrence aspect of the civil law system breaks down. Many people are what lawyers call “judgment proof.” They don’t have a lot of money or assets, so an injured party can’t really recover damages from them, no matter what they do.
On the other end of the spectrum, the civil system is a complete joke to wealthy individuals or corporations with the ability to pay. Corporate bean counters are more than capable of budgeting for the harm their companies cause and then, in the deepest of injustices, pass that cost on to consumers. Patients pay when a doctor’s incompetence leads to a malpractice settlement that bumps up the hospital’s insurance premiums. Motorists pay when oil companies get sued for running their tankers into a penguin colony and are forced to adopt new safety measures. And, yes, taxpayers pay for police brutality settlements that never seem to result in police departments’ changing their brutal ways or even taking budget hits to pay their cities back. The money from these settlements helps the victims, but they don’t stop corporate or institutional bad behavior
The very wealthy are not deterred by monetary damages—they just chalk up those damages as part of the cost of doing business. They’ll change their business practices only if the damages outweigh the expected profits of the objectionable behavior. When behaving badly is the business model, nothing changes.
Which is precisely why Fox News will change nothing after its Dominion settlement—and the settlement that is sure to follow with Smartmatic, another voting machine company, which is suing Fox and others for $2.7 billion. The penalty will not stop Fox from misleading the public, or from putting liars on air. It will not make Fox reform its journalistic standards (or, you know, adopt journalistic standards). It will not make Fox stop fomenting hate, bigotry, sexism, or xenophobia. Fox’s business model requires those things, and the civil damages left it in business. To quote Warden Norton from Shawshank Redemption: “Nothing stops. Nothing.”
If you wanted Fox to be held accountable, you’ve come to the wrong legal system. We do not hold wealthy corporations accountable in this country. Monetary damages can masquerade as punishment, but they’ll never look like justice.
