Foxmers did apologize. We got them to be held accountable and we got them to pay us a historic settlement amount. I believe it is the largest settlement in the history of any defamation suit by a factor of several.
But will the nearly eight hundred million dollars settlement between Fox News and voting machine company Dominion remain the largest defamation settlement and historic as attorney did Vita Brooks said. Next up is Smartmatic, another voting machine company, suing Fox in a very similar defamation case over false twenty twenty election claims. Only Smartmatic is asking for two point seven billion dollars. That's one point one billion more than Dominion
was suing. Four Joining me is an expert in defamation, David Corsenic of Miller Corsenic Summer's Raymond David. Outside of the monetary amount, how significant is this settlement.
It's worth considering what the impact is of this settlement on the law on Fox News, on democracy propaganda from an historical point of view, and what it will do for libel claiming in the future. So on the issue of impact on libel law, I think it will have no immediate impact, but it probably affirms the viability and the soundness of New York Times versus Sullivan and the actual malice standard, because it shows that that standard works. Second, as far as the impact on Fox News going forward,
hard to know. I don't think that it will change. They are reporting because in a certain way, Fox is riding a tiger and can't get off it. But the recent shift with Ugar Carlson is interesting, but may or may not be indicative of anything on that point. But another thing to keep in mind here is that while Fox dead in the settlement that they acknowledge the judge's decision, the judge's decision has acted more force here than just that.
It's a factual ruling and a legal ruling on falsehood that's legally binding on Fox going forward and legally binding on them well collateral estopol as to any plaintiff that goes after them based on related facts. The second, there are obviously these other inbound suits that are taking place. There is the Smartmatic case that's really advancing kind of feverishly while we were paying attention to dominion, But it's the huge numbers of filings and decisions in that lawsuit,
and that's advancing. There's evidence on the public record that was extracted in the course of the dominion case that will be accessible and usable by anyone who makes claims
against Fox, not just pr wise but legally obviously. Then there's also careholder actions that are now underway, and they may be more significant than We've really still to evaluate their impact, but they're quite serious because they are shareholder claims about the irresponsibility of Fox promoting these fictions when it was clearly going to be to the detriment of the company financially.
What do you think the effect of all the things that came out through discovery? What the effect of that will be.
All of the discovery that's come out is going to support and fuel future reporting about Fox. And then there are people who have left Fox who are having in litigation with them, one in particular, who claims that Fox pressured her into testifying in a way that she did not wish on the dominion matter. So that is pending and we'll have to see how that one plays out. So those are the variety of factors that will have an impact on Fox. There's just a tremendous amount of
blood in the water here. I think that will be magnificant in terms of possibly fueling other claims that go beyond just the election fraud issues, so they have to be probably more cautious. And the final point I'll make is that there's an historical import here, a historical analogy.
I think it's interesting that there's something similar going on to what happened in the blacklisting cases, the libel cases that were brought during the McCarthy era by those who were blacklisted and called communists, and those libel case had a significant impact in that they helped turn the tide
against the hysteria of the McCarthy period. And I would think, or I understand that it may well have had an impact on Justice Brandan's approach in New York Times versus Sullivan, because there were some justices who wanted to completely cut out the libel cause of action against any public official.
But Brandon fashion the Act Malice standard is a kind of compromise both to protect speech strongly but also to allow the libel claim to persist, probably mindful of the fact that it was significant just in the prior decade in terms of reversing the McCarthy tosaria. So interesting parallel there.
How do the judge's rulings in the dominion case help Smartmatic. What does it have to prove? What doesn't it have to prove?
Well, it has to prove that to the extent that the Fox broadcasts they're attacking are different in substance from the allegations made against Dominion, but they do seem to be overlapping because they do relate more broadly about whether or not there was any evidence at all to support
the election fraud claim or story. And second, there is a kind of overlap between Dominion and Smartmatic in the sense that Dominions machines used Smartmatic software, so that even though Smartmatic chains were only used in LA and not
as Fox that allege in many of the swing states. Nonetheless, at issue is the vote switching features of the software that was used as well at Dominions, So there's a lot of overlap there, and there's no question that ruling by Judge Davis the Dominion case will work to the advantage locked in advantage of Smartmatic, not on everything, but on a lot of it. Also, keep in mind that
the smart Matic case is pending in New York. The Dominion case was pending in Delaware, but there was no question that New York law of libel and New York constitutional features applied in both cases. So the law applied in Delaware applies just as well here in the Smartmatic case in Manhattan. And they're also and I think this is interesting, is that there are sealed materials in the
dominion case. It could be held sealed during the pendency of the case, but once the case is settled, that as it is, and once it's clear that many of those sealed materials were relevant to the decision rendered by the court, then media organizations are going to go to the court and ask that those documents be unsealed. And the presumption that they should be unsealed applies more forcefully after the case is over and when it's clear that they were relevant to a judicial ruling.
I mean, what drew so much attention to the dominion case was, you know, all the texts that we saw and the messages from the on air host over to the management Rupert Murdoch. Does Smartmatic have those same kinds of texts, Well.
They'll be able to use all that discovery and all those documents in their own case. And to the extent they're overlapping issues on looks like there really are quite a few. They're going to really benefit from that, They're going to benefit from the evidence, they're going to benefit from the ruling, and then they may have special issues of their own, some of which look worse for Fox than even dominion because of the la versus not having
machines in swing states. There's another feature here that's kind of be interesting. There's a new York anti slap law came into effect in November of twenty twenty, and it made added procedural and substance of protections for defendants in libel action, and it made for a special motion to dismiss a libel claim that works very much to the advantage of any defendant. And Fox, of course deployed that anty slap motion that was something that didn't apply in Delaware,
and they still lost. Even with the added burdens that the anti slap law imposes on the plaintiff marsmatic to show not just that they either or not, but they have to come forward and show that they have a substantial basis for making that claim, and they fail to do that.
So Fox said that smartmatics damages claims are implausible, disconnected from reality, and on its face intended to chill First Amendment freedoms. Does that sound a lot like claims that the judge dismissed in the dominion suit.
Yes, you know, there's always an issue when there's a product disparagement claim about the adequacy of damage pleading, the specificity of those pleadings, and the ability to show causation. But if the claims are really just straight libel claims, corporate plantiffs still has real obstacles to proving things. Corporate planteff if it points to any specific loss, is going to have to show causation, and once that happens, becomes
more complicated for them. So yeah, damages for a human being, for an individual is very different inlibel than damages for a corporation. So they are hard to show. And it probably would have been a complicated battle for dominion, and though those of all the different parts of their case that would have been perhaps the more vulnerable that would have been it and that will be the case here too.
But you know, you do have punitives that are potentially in the wings here, and those could really kick up the value of the claim even if the underlying actual damage to the plaintiffs is less.
Fox and one has nothing to do with the other. But the fact that they settle the dominion is that sort of an indication that they'll settle the smartmatic as well.
It could be. I mean, I think we all feel that the reason for the settlement was the risk of having all these news anchors having to testify and the damage that that could do to Fox over a long and extended period of time while the trial was going on.
Can happen here too, And just because an anchor or someone isn't named as a party to the lawsuit doesn't mean that they won't be a witness to it, because remember, the dominion case is really just against the Fox entities here, they're also against Barberomo and Hero and Dobbs and specific you know anchors, but they don't have to be named
in order to land a punch on Fox. And so I would guess I would think when you read this three hundred page complaint, there are a lot of different names of anchors who come up here other than Dobbs and Bardiomo and Piero, and there's no reason that they couldn't be brought in as witnesses too. I don't know, I'd need to look at it more closely, and that may be something that's going to be very hard taught, and there'll be more discovery that probably comes out in
this case. So yeah, they're probably great incentives for settlement as well. But then you know, in the wings again there's the share older actions that could be problematic. Employees who either resigned or fired that could create a problem is one of them that I know of. It's problematic for them. There's a lot happening, and there's a lot of blood in the water, and it makes it both more valuable for them to settle, but also more difficult to settle.
Dominion and Smartmatic are both suing Newsmax Andaan, which went even further than Fox News in promoting the debunked conspiracy theories and the supposed election rigging. What do we know about those cases? Are they as strong as Dominion's case?
I would think so, particularly if they're willing to go more you know, over the top. Then even Fox was because you did have some Fox anchors E. Tucker Carlson, for example, was challenging the supporting evidence for some of Sidney Powell's statements. So it's I don't think that you're likely to even see anything of that kind in the
Newsmax and ola in cases. I don't know the details of those cases as much as I do Smartmatic or Dominion, but I'm sure the very same kinds of vulnerabilities are there. But again, there may be less actual malice evidence or evidence of disbelief by them. They could possibly try to say, oh, we were just relying on Fox. I don't know specifically. They could do a reliance argument, so you know, Fox is reliable and we just relied on them, and you know, we just went with what we heard from them and
some of the people we interviewed. It probably won't work, and they're probably all kinds of difficulties internally for them. I mean, what's really interesting is we've all been looking at Dominion and yet the Smartmatic thing has been just ripping along. Number of filings in that docket in New York are just extreme ordinary. I think they're well over one thousand. There's a lot of stuff that'sn't happen in that case, and I gather people are saying they'll be
tried sometime in twenty twenty five. There'll be motions before then, and probably a lot of news coming out regarding them. So there's a lot growing here.
If Tucker Carlson is called to testify in the Smartmatic suit, I mean, you have a hostile person testifying against you, then.
If he is parting ways with them, there's probably some understanding that he would need to continue to cooperate. It's possible that he was paid substantially as part of the deal. I don't know that. If he was paid, then there would be with it certain kinds of restrictions on what he could or couldn't do. He would surely have to cooperate with them and their defense that he sent they needed his testimony, So again, it's really hard to call
at this stage. I think that people are going to learn a lot more about it as time passes.
What do you think the long term impact of these cases is going to be.
I'm a media defense lawyer. I represent news organizations, and so I'm constantly thinking how will this affect other claims made against other defendants. And you know, you can say that Fox is really a political organization and not a news organization. Some people say that, but they're protected by the same First Amendment protections, whether they're biased or not.
So I think that what's going to happen is that the cause of a case like this, it will fuel plaintiffs imagination and they will all be trying to frame their own Fox type cases that they think they have against some other news organization. I don't think that those will be successful. They will be attempted, but I think they'll fail, partly because I don't think that you can actually get the kind of discovery of news organization's internal
deliberations and sourcing as was the case here. This was unusual. They were able to get inside stuff and overcome what's called the reporter's privilege that protects against disclosure of internal editorial deliberations in context with sources and so on. They're able to get around it because there was so much reporting going on about Fox's reporting over an extended period of time. You know, there were insiders who were talking to news organizations saying, I saw this email, I saw
that I was in that meeting. Here's what Suzanne Scott said. Once you have that kind of specificity and you say there was this email, I know it was there, I know what they said, then you're more likely going to be able to get it, even if the reporter's privilege is powerful, as it is in New York, even if it's asserted. So if you don't know what you're looking for, you can't get it. And those you can't just say, do you have anything in which you displayed any doubt
about what you were publishing? You can't do that. That's fishing and the reporter which doesn't allow it, though in ordinary cases you could get it. And that's the problem that Fox has here, is that there was so much information out there, so many people who were being fired, so many people who resigned because their professional sensibilities were offended by what Fox was doing, and then they themselves either wrote articles, they themselves turned over documents to news
reporters who then cited those things. And once that's out there, then it's harder to block that because then the claimant has the particular artive that allows them to overcome the reporter's privilege. And by the way, it was still heavily
battled in the dominion case. In other words, Fox did assert the reporters privilege, but it was hard to do because the stuff was already out there and already identifiable, which is rare and in many libel cases, particularly those that just involved one article or one line or several lines in one article, which is really what most things are at one publication with a lot of different statements
in it. But you're still not going to as likely to be able to overcome the reporter's privilege in those kinds of setting.
Thanks so much for your insights, David. It's such a fascinating case or cases. That's David Corzenic of Miller Corsenic Summer's Raymond. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm
Wall Street Time. I'm June Grosso, and you're listening to Bloomberg