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Speaker 1: Foxmers did apologize. We got them to be held accountable

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Speaker 1: and we got them to pay us a historic settlement amount.

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Speaker 1: I believe it is the largest settlement in the history

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Speaker 1: of any defamation suit by a factor of several.

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Speaker 2: But will the nearly eight hundred million dollars settlement between

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Speaker 2: Fox News and voting machine company Dominion remain the largest

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Speaker 2: defamation settlement and historic as attorney did Vita Brooks said.

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Speaker 2: Next up is Smartmatic, another voting machine company, suing Fox

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Speaker 2: in a very similar defamation case over false twenty twenty

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Speaker 2: election claims. Only Smartmatic is asking for two point seven

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Speaker 2: billion dollars. That's one point one billion more than Dominion

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Speaker 2: was suing. Four Joining me is an expert in defamation,

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Speaker 2: David Corsenic of Miller Corsenic Summer's Raymond David. Outside of

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Speaker 2: the monetary amount, how significant is this settlement.

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Speaker 3: It's worth considering what the impact is of this settlement

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Speaker 3: on the law on Fox News, on democracy propaganda from

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Speaker 3: an historical point of view, and what it will do

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Speaker 3: for libel claiming in the future. So on the issue

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Speaker 3: of impact on libel law, I think it will have

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Speaker 3: no immediate impact, but it probably affirms the viability and

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Speaker 3: the soundness of New York Times versus Sullivan and the

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Speaker 3: actual malice standard, because it shows that that standard works. Second,

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Speaker 3: as far as the impact on Fox News going forward,

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Speaker 3: hard to know. I don't think that it will change.

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Speaker 3: They are reporting because in a certain way, Fox is

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Speaker 3: riding a tiger and can't get off it. But the

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Speaker 3: recent shift with Ugar Carlson is interesting, but may or

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Speaker 3: may not be indicative of anything on that point. But

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Speaker 3: another thing to keep in mind here is that while

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Speaker 3: Fox dead in the settlement that they acknowledge the judge's decision,

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Speaker 3: the judge's decision has acted more force here than just that.

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Speaker 3: It's a factual ruling and a legal ruling on falsehood

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Speaker 3: that's legally binding on Fox going forward and legally binding

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Speaker 3: on them well collateral estopol as to any plaintiff that

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Speaker 3: goes after them based on related facts. The second, there

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Speaker 3: are obviously these other inbound suits that are taking place.

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Speaker 3: There is the Smartmatic case that's really advancing kind of

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Speaker 3: feverishly while we were paying attention to dominion, But it's

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Speaker 3: the huge numbers of filings and decisions in that lawsuit,

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Speaker 3: and that's advancing. There's evidence on the public record that

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Speaker 3: was extracted in the course of the dominion case that

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Speaker 3: will be accessible and usable by anyone who makes claims

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Speaker 3: against Fox, not just pr wise but legally obviously. Then

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Speaker 3: there's also careholder actions that are now underway, and they

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Speaker 3: may be more significant than We've really still to evaluate

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Speaker 3: their impact, but they're quite serious because they are shareholder

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Speaker 3: claims about the irresponsibility of Fox promoting these fictions when

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Speaker 3: it was clearly going to be to the detriment of

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Speaker 3: the company financially.

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Speaker 2: What do you think the effect of all the things

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Speaker 2: that came out through discovery? What the effect of that

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Speaker 2: will be.

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Speaker 3: All of the discovery that's come out is going to

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Speaker 3: support and fuel future reporting about Fox. And then there

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Speaker 3: are people who have left Fox who are having in

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Speaker 3: litigation with them, one in particular, who claims that Fox

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Speaker 3: pressured her into testifying in a way that she did

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Speaker 3: not wish on the dominion matter. So that is pending

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Speaker 3: and we'll have to see how that one plays out.

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Speaker 3: So those are the variety of factors that will have

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Speaker 3: an impact on Fox. There's just a tremendous amount of

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Speaker 3: blood in the water here. I think that will be

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Speaker 3: magnificant in terms of possibly fueling other claims that go

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Speaker 3: beyond just the election fraud issues, so they have to

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Speaker 3: be probably more cautious. And the final point I'll make

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Speaker 3: is that there's an historical import here, a historical analogy.

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Speaker 3: I think it's interesting that there's something similar going on

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Speaker 3: to what happened in the blacklisting cases, the libel cases

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Speaker 3: that were brought during the McCarthy era by those who

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Speaker 3: were blacklisted and called communists, and those libel case had

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Speaker 3: a significant impact in that they helped turn the tide

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Speaker 3: against the hysteria of the McCarthy period. And I would think,

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Speaker 3: or I understand that it may well have had an

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Speaker 3: impact on Justice Brandan's approach in New York Times versus Sullivan,

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Speaker 3: because there were some justices who wanted to completely cut

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Speaker 3: out the libel cause of action against any public official.

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Speaker 3: But Brandon fashion the Act Malice standard is a kind

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Speaker 3: of compromise both to protect speech strongly but also to

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Speaker 3: allow the libel claim to persist, probably mindful of the

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Speaker 3: fact that it was significant just in the prior decade

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Speaker 3: in terms of reversing the McCarthy tosaria. So interesting parallel there.

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Speaker 2: How do the judge's rulings in the dominion case help Smartmatic.

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Speaker 2: What does it have to prove? What doesn't it have

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Speaker 2: to prove?

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Speaker 3: Well, it has to prove that to the extent that

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Speaker 3: the Fox broadcasts they're attacking are different in substance from

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Speaker 3: the allegations made against Dominion, but they do seem to

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Speaker 3: be overlapping because they do relate more broadly about whether

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Speaker 3: or not there was any evidence at all to support

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Speaker 3: the election fraud claim or story. And second, there is

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Speaker 3: a kind of overlap between Dominion and Smartmatic in the

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Speaker 3: sense that Dominions machines used Smartmatic software, so that even

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Speaker 3: though Smartmatic chains were only used in LA and not

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Speaker 3: as Fox that allege in many of the swing states. Nonetheless,

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Speaker 3: at issue is the vote switching features of the software

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Speaker 3: that was used as well at Dominions, So there's a

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Speaker 3: lot of overlap there, and there's no question that ruling

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Speaker 3: by Judge Davis the Dominion case will work to the

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Speaker 3: advantage locked in advantage of Smartmatic, not on everything, but

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Speaker 3: on a lot of it. Also, keep in mind that

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Speaker 3: the smart Matic case is pending in New York. The

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Speaker 3: Dominion case was pending in Delaware, but there was no

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Speaker 3: question that New York law of libel and New York

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Speaker 3: constitutional features applied in both cases. So the law applied

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Speaker 3: in Delaware applies just as well here in the Smartmatic

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Speaker 3: case in Manhattan. And they're also and I think this

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Speaker 3: is interesting, is that there are sealed materials in the

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Speaker 3: dominion case. It could be held sealed during the pendency

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Speaker 3: of the case, but once the case is settled, that

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Speaker 3: as it is, and once it's clear that many of

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Speaker 3: those sealed materials were relevant to the decision rendered by

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Speaker 3: the court, then media organizations are going to go to

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Speaker 3: the court and ask that those documents be unsealed. And

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Speaker 3: the presumption that they should be unsealed applies more forcefully

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Speaker 3: after the case is over and when it's clear that

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Speaker 3: they were relevant to a judicial ruling.

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Speaker 2: I mean, what drew so much attention to the dominion

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Speaker 2: case was, you know, all the texts that we saw

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Speaker 2: and the messages from the on air host over to

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Speaker 2: the management Rupert Murdoch. Does Smartmatic have those same kinds

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Speaker 2: of texts, Well.

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Speaker 3: They'll be able to use all that discovery and all

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Speaker 3: those documents in their own case. And to the extent

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Speaker 3: they're overlapping issues on looks like there really are quite

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Speaker 3: a few. They're going to really benefit from that, They're

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Speaker 3: going to benefit from the evidence, they're going to benefit

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Speaker 3: from the ruling, and then they may have special issues

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Speaker 3: of their own, some of which look worse for Fox

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Speaker 3: than even dominion because of the la versus not having

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Speaker 3: machines in swing states. There's another feature here that's kind

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Speaker 3: of be interesting. There's a new York anti slap law

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Speaker 3: came into effect in November of twenty twenty, and it

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Speaker 3: made added procedural and substance of protections for defendants in

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Speaker 3: libel action, and it made for a special motion to

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Speaker 3: dismiss a libel claim that works very much to the

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Speaker 3: advantage of any defendant. And Fox, of course deployed that

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Speaker 3: anty slap motion that was something that didn't apply in Delaware,

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Speaker 3: and they still lost. Even with the added burdens that

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Speaker 3: the anti slap law imposes on the plaintiff marsmatic to

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Speaker 3: show not just that they either or not, but they

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Speaker 3: have to come forward and show that they have a

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Speaker 3: substantial basis for making that claim, and they fail to

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Speaker 3: do that.

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Speaker 2: So Fox said that smartmatics damages claims are implausible, disconnected

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Speaker 2: from reality, and on its face intended to chill First

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Speaker 2: Amendment freedoms. Does that sound a lot like claims that

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Speaker 2: the judge dismissed in the dominion suit.

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Speaker 3: Yes, you know, there's always an issue when there's a

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Speaker 3: product disparagement claim about the adequacy of damage pleading, the

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Speaker 3: specificity of those pleadings, and the ability to show causation.

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Speaker 3: But if the claims are really just straight libel claims,

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Speaker 3: corporate plantiffs still has real obstacles to proving things. Corporate

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Speaker 3: planteff if it points to any specific loss, is going

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Speaker 3: to have to show causation, and once that happens, becomes

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Speaker 3: more complicated for them. So yeah, damages for a human being,

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Speaker 3: for an individual is very different inlibel than damages for

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Speaker 3: a corporation. So they are hard to show. And it

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Speaker 3: probably would have been a complicated battle for dominion, and

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Speaker 3: though those of all the different parts of their case

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Speaker 3: that would have been perhaps the more vulnerable that would

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Speaker 3: have been it and that will be the case here too.

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Speaker 3: But you know, you do have punitives that are potentially

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Speaker 3: in the wings here, and those could really kick up

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Speaker 3: the value of the claim even if the underlying actual

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Speaker 3: damage to the plaintiffs is less.

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Speaker 2: Fox and one has nothing to do with the other.

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Speaker 2: But the fact that they settle the dominion is that

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Speaker 2: sort of an indication that they'll settle the smartmatic as well.

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Speaker 3: It could be. I mean, I think we all feel

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Speaker 3: that the reason for the settlement was the risk of

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Speaker 3: having all these news anchors having to testify and the

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Speaker 3: damage that that could do to Fox over a long

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Speaker 3: and extended period of time while the trial was going on.

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Speaker 3: Can happen here too, And just because an anchor or

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Speaker 3: someone isn't named as a party to the lawsuit doesn't

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Speaker 3: mean that they won't be a witness to it, because remember,

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Speaker 3: the dominion case is really just against the Fox entities here,

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Speaker 3: they're also against Barberomo and Hero and Dobbs and specific

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Speaker 3: you know anchors, but they don't have to be named

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Speaker 3: in order to land a punch on Fox. And so

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Speaker 3: I would guess I would think when you read this

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Speaker 3: three hundred page complaint, there are a lot of different

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Speaker 3: names of anchors who come up here other than Dobbs

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Speaker 3: and Bardiomo and Piero, and there's no reason that they

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Speaker 3: couldn't be brought in as witnesses too. I don't know,

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Speaker 3: I'd need to look at it more closely, and that

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Speaker 3: may be something that's going to be very hard taught,

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Speaker 3: and there'll be more discovery that probably comes out in

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Speaker 3: this case. So yeah, they're probably great incentives for settlement

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Speaker 3: as well. But then you know, in the wings again

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Speaker 3: there's the share older actions that could be problematic. Employees

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Speaker 3: who either resigned or fired that could create a problem

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Speaker 3: is one of them that I know of. It's problematic

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Speaker 3: for them. There's a lot happening, and there's a lot

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Speaker 3: of blood in the water, and it makes it both

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Speaker 3: more valuable for them to settle, but also more difficult

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Speaker 3: to settle.

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Speaker 2: Dominion and Smartmatic are both suing Newsmax Andaan, which went

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Speaker 2: even further than Fox News in promoting the debunked conspiracy

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Speaker 2: theories and the supposed election rigging. What do we know

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Speaker 2: about those cases? Are they as strong as Dominion's case?

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Speaker 3: I would think so, particularly if they're willing to go

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Speaker 3: more you know, over the top. Then even Fox was

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Speaker 3: because you did have some Fox anchors E. Tucker Carlson,

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Speaker 3: for example, was challenging the supporting evidence for some of

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Speaker 3: Sidney Powell's statements. So it's I don't think that you're

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Speaker 3: likely to even see anything of that kind in the

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Speaker 3: Newsmax and ola in cases. I don't know the details

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Speaker 3: of those cases as much as I do Smartmatic or Dominion,

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Speaker 3: but I'm sure the very same kinds of vulnerabilities are there.

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Speaker 3: But again, there may be less actual malice evidence or

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Speaker 3: evidence of disbelief by them. They could possibly try to say, oh,

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Speaker 3: we were just relying on Fox. I don't know specifically.

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Speaker 3: They could do a reliance argument, so you know, Fox

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Speaker 3: is reliable and we just relied on them, and you know,

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Speaker 3: we just went with what we heard from them and

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Speaker 3: some of the people we interviewed. It probably won't work,

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Speaker 3: and they're probably all kinds of difficulties internally for them.

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Speaker 3: I mean, what's really interesting is we've all been looking

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Speaker 3: at Dominion and yet the Smartmatic thing has been just

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Speaker 3: ripping along. Number of filings in that docket in New

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Speaker 3: York are just extreme ordinary. I think they're well over

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Speaker 3: one thousand. There's a lot of stuff that'sn't happen in

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Speaker 3: that case, and I gather people are saying they'll be

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Speaker 3: tried sometime in twenty twenty five. There'll be motions before then,

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Speaker 3: and probably a lot of news coming out regarding them.

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Speaker 3: So there's a lot growing here.

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Speaker 2: If Tucker Carlson is called to testify in the Smartmatic suit,

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Speaker 2: I mean, you have a hostile person testifying against you, then.

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Speaker 3: If he is parting ways with them, there's probably some

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Speaker 3: understanding that he would need to continue to cooperate. It's

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Speaker 3: possible that he was paid substantially as part of the deal.

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Speaker 3: I don't know that. If he was paid, then there

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Speaker 3: would be with it certain kinds of restrictions on what

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Speaker 3: he could or couldn't do. He would surely have to

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Speaker 3: cooperate with them and their defense that he sent they

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Speaker 3: needed his testimony, So again, it's really hard to call

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Speaker 3: at this stage. I think that people are going to

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Speaker 3: learn a lot more about it as time passes.

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Speaker 2: What do you think the long term impact of these

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Speaker 2: cases is going to be.

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Speaker 3: I'm a media defense lawyer. I represent news organizations, and

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Speaker 3: so I'm constantly thinking how will this affect other claims

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Speaker 3: made against other defendants. And you know, you can say

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Speaker 3: that Fox is really a political organization and not a

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Speaker 3: news organization. Some people say that, but they're protected by

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Speaker 3: the same First Amendment protections, whether they're biased or not.

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Speaker 3: So I think that what's going to happen is that

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Speaker 3: the cause of a case like this, it will fuel

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Speaker 3: plaintiffs imagination and they will all be trying to frame

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Speaker 3: their own Fox type cases that they think they have

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Speaker 3: against some other news organization. I don't think that those

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Speaker 3: will be successful. They will be attempted, but I think

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Speaker 3: they'll fail, partly because I don't think that you can

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Speaker 3: actually get the kind of discovery of news organization's internal

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Speaker 3: deliberations and sourcing as was the case here. This was unusual.

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Speaker 3: They were able to get inside stuff and overcome what's

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Speaker 3: called the reporter's privilege that protects against disclosure of internal

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Speaker 3: editorial deliberations in context with sources and so on. They're

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Speaker 3: able to get around it because there was so much

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Speaker 3: reporting going on about Fox's reporting over an extended period

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Speaker 3: of time. You know, there were insiders who were talking

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Speaker 3: to news organizations saying, I saw this email, I saw

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Speaker 3: that I was in that meeting. Here's what Suzanne Scott said.

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Speaker 3: Once you have that kind of specificity and you say

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Speaker 3: there was this email, I know it was there, I

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Speaker 3: know what they said, then you're more likely going to

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Speaker 3: be able to get it, even if the reporter's privilege

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Speaker 3: is powerful, as it is in New York, even if

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Speaker 3: it's asserted. So if you don't know what you're looking for,

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Speaker 3: you can't get it. And those you can't just say,

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Speaker 3: do you have anything in which you displayed any doubt

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Speaker 3: about what you were publishing? You can't do that. That's

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Speaker 3: fishing and the reporter which doesn't allow it, though in

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Speaker 3: ordinary cases you could get it. And that's the problem

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Speaker 3: that Fox has here, is that there was so much

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Speaker 3: information out there, so many people who were being fired,

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Speaker 3: so many people who resigned because their professional sensibilities were

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Speaker 3: offended by what Fox was doing, and then they themselves

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Speaker 3: either wrote articles, they themselves turned over documents to news

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Speaker 3: reporters who then cited those things. And once that's out there,

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Speaker 3: then it's harder to block that because then the claimant

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Speaker 3: has the particular artive that allows them to overcome the

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Speaker 3: reporter's privilege. And by the way, it was still heavily

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Speaker 3: battled in the dominion case. In other words, Fox did

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Speaker 3: assert the reporters privilege, but it was hard to do

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Speaker 3: because the stuff was already out there and already identifiable,

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Speaker 3: which is rare and in many libel cases, particularly those

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Speaker 3: that just involved one article or one line or several

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Speaker 3: lines in one article, which is really what most things

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Speaker 3: are at one publication with a lot of different statements

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Speaker 3: in it. But you're still not going to as likely

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Speaker 3: to be able to overcome the reporter's privilege in those

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Speaker 3: kinds of setting.

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Speaker 2: Thanks so much for your insights, David. It's such a

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Speaker 2: fascinating case or cases. That's David Corzenic of Miller Corsenic

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Speaker 2: Summer's Raymond. And that's it for this edition of The

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