Speaker 1: Foxmers did apologize. We got them to be held accountable
Speaker 1: and we got them to pay us a historic settlement amount.
Speaker 1: I believe it is the largest settlement in the history
Speaker 1: of any defamation suit by a factor of several.
Speaker 2: But will the nearly eight hundred million dollars settlement between
Speaker 2: Fox News and voting machine company Dominion remain the largest
Speaker 2: defamation settlement and historic as attorney did Vita Brooks said.
Speaker 2: Next up is Smartmatic, another voting machine company, suing Fox
Speaker 2: in a very similar defamation case over false twenty twenty
Speaker 2: election claims. Only Smartmatic is asking for two point seven
Speaker 2: billion dollars. That's one point one billion more than Dominion
Speaker 2: was suing. Four Joining me is an expert in defamation,
Speaker 2: David Corsenic of Miller Corsenic Summer's Raymond David. Outside of
Speaker 2: the monetary amount, how significant is this settlement.
Speaker 3: It's worth considering what the impact is of this settlement
Speaker 3: on the law on Fox News, on democracy propaganda from
Speaker 3: an historical point of view, and what it will do
Speaker 3: for libel claiming in the future. So on the issue
Speaker 3: of impact on libel law, I think it will have
Speaker 3: no immediate impact, but it probably affirms the viability and
Speaker 3: the soundness of New York Times versus Sullivan and the
Speaker 3: actual malice standard, because it shows that that standard works. Second,
Speaker 3: as far as the impact on Fox News going forward,
Speaker 3: hard to know. I don't think that it will change.
Speaker 3: They are reporting because in a certain way, Fox is
Speaker 3: riding a tiger and can't get off it. But the
Speaker 3: recent shift with Ugar Carlson is interesting, but may or
Speaker 3: may not be indicative of anything on that point. But
Speaker 3: another thing to keep in mind here is that while
Speaker 3: Fox dead in the settlement that they acknowledge the judge's decision,
Speaker 3: the judge's decision has acted more force here than just that.
Speaker 3: It's a factual ruling and a legal ruling on falsehood
Speaker 3: that's legally binding on Fox going forward and legally binding
Speaker 3: on them well collateral estopol as to any plaintiff that
Speaker 3: goes after them based on related facts. The second, there
Speaker 3: are obviously these other inbound suits that are taking place.
Speaker 3: There is the Smartmatic case that's really advancing kind of
Speaker 3: feverishly while we were paying attention to dominion, But it's
Speaker 3: the huge numbers of filings and decisions in that lawsuit,
Speaker 3: and that's advancing. There's evidence on the public record that
Speaker 3: was extracted in the course of the dominion case that
Speaker 3: will be accessible and usable by anyone who makes claims
Speaker 3: against Fox, not just pr wise but legally obviously. Then
Speaker 3: there's also careholder actions that are now underway, and they
Speaker 3: may be more significant than We've really still to evaluate
Speaker 3: their impact, but they're quite serious because they are shareholder
Speaker 3: claims about the irresponsibility of Fox promoting these fictions when
Speaker 3: it was clearly going to be to the detriment of
Speaker 3: the company financially.
Speaker 2: What do you think the effect of all the things
Speaker 2: that came out through discovery? What the effect of that
Speaker 2: will be.
Speaker 3: All of the discovery that's come out is going to
Speaker 3: support and fuel future reporting about Fox. And then there
Speaker 3: are people who have left Fox who are having in
Speaker 3: litigation with them, one in particular, who claims that Fox
Speaker 3: pressured her into testifying in a way that she did
Speaker 3: not wish on the dominion matter. So that is pending
Speaker 3: and we'll have to see how that one plays out.
Speaker 3: So those are the variety of factors that will have
Speaker 3: an impact on Fox. There's just a tremendous amount of
Speaker 3: blood in the water here. I think that will be
Speaker 3: magnificant in terms of possibly fueling other claims that go
Speaker 3: beyond just the election fraud issues, so they have to
Speaker 3: be probably more cautious. And the final point I'll make
Speaker 3: is that there's an historical import here, a historical analogy.
Speaker 3: I think it's interesting that there's something similar going on
Speaker 3: to what happened in the blacklisting cases, the libel cases
Speaker 3: that were brought during the McCarthy era by those who
Speaker 3: were blacklisted and called communists, and those libel case had
Speaker 3: a significant impact in that they helped turn the tide
Speaker 3: against the hysteria of the McCarthy period. And I would think,
Speaker 3: or I understand that it may well have had an
Speaker 3: impact on Justice Brandan's approach in New York Times versus Sullivan,
Speaker 3: because there were some justices who wanted to completely cut
Speaker 3: out the libel cause of action against any public official.
Speaker 3: But Brandon fashion the Act Malice standard is a kind
Speaker 3: of compromise both to protect speech strongly but also to
Speaker 3: allow the libel claim to persist, probably mindful of the
Speaker 3: fact that it was significant just in the prior decade
Speaker 3: in terms of reversing the McCarthy tosaria. So interesting parallel there.
Speaker 2: How do the judge's rulings in the dominion case help Smartmatic.
Speaker 2: What does it have to prove? What doesn't it have
Speaker 2: to prove?
Speaker 3: Well, it has to prove that to the extent that
Speaker 3: the Fox broadcasts they're attacking are different in substance from
Speaker 3: the allegations made against Dominion, but they do seem to
Speaker 3: be overlapping because they do relate more broadly about whether
Speaker 3: or not there was any evidence at all to support
Speaker 3: the election fraud claim or story. And second, there is
Speaker 3: a kind of overlap between Dominion and Smartmatic in the
Speaker 3: sense that Dominions machines used Smartmatic software, so that even
Speaker 3: though Smartmatic chains were only used in LA and not
Speaker 3: as Fox that allege in many of the swing states. Nonetheless,
Speaker 3: at issue is the vote switching features of the software
Speaker 3: that was used as well at Dominions, So there's a
Speaker 3: lot of overlap there, and there's no question that ruling
Speaker 3: by Judge Davis the Dominion case will work to the
Speaker 3: advantage locked in advantage of Smartmatic, not on everything, but
Speaker 3: on a lot of it. Also, keep in mind that
Speaker 3: the smart Matic case is pending in New York. The
Speaker 3: Dominion case was pending in Delaware, but there was no
Speaker 3: question that New York law of libel and New York
Speaker 3: constitutional features applied in both cases. So the law applied
Speaker 3: in Delaware applies just as well here in the Smartmatic
Speaker 3: case in Manhattan. And they're also and I think this
Speaker 3: is interesting, is that there are sealed materials in the
Speaker 3: dominion case. It could be held sealed during the pendency
Speaker 3: of the case, but once the case is settled, that
Speaker 3: as it is, and once it's clear that many of
Speaker 3: those sealed materials were relevant to the decision rendered by
Speaker 3: the court, then media organizations are going to go to
Speaker 3: the court and ask that those documents be unsealed. And
Speaker 3: the presumption that they should be unsealed applies more forcefully
Speaker 3: after the case is over and when it's clear that
Speaker 3: they were relevant to a judicial ruling.
Speaker 2: I mean, what drew so much attention to the dominion
Speaker 2: case was, you know, all the texts that we saw
Speaker 2: and the messages from the on air host over to
Speaker 2: the management Rupert Murdoch. Does Smartmatic have those same kinds
Speaker 2: of texts, Well.
Speaker 3: They'll be able to use all that discovery and all
Speaker 3: those documents in their own case. And to the extent
Speaker 3: they're overlapping issues on looks like there really are quite
Speaker 3: a few. They're going to really benefit from that, They're
Speaker 3: going to benefit from the evidence, they're going to benefit
Speaker 3: from the ruling, and then they may have special issues
Speaker 3: of their own, some of which look worse for Fox
Speaker 3: than even dominion because of the la versus not having
Speaker 3: machines in swing states. There's another feature here that's kind
Speaker 3: of be interesting. There's a new York anti slap law
Speaker 3: came into effect in November of twenty twenty, and it
Speaker 3: made added procedural and substance of protections for defendants in
Speaker 3: libel action, and it made for a special motion to
Speaker 3: dismiss a libel claim that works very much to the
Speaker 3: advantage of any defendant. And Fox, of course deployed that
Speaker 3: anty slap motion that was something that didn't apply in Delaware,
Speaker 3: and they still lost. Even with the added burdens that
Speaker 3: the anti slap law imposes on the plaintiff marsmatic to
Speaker 3: show not just that they either or not, but they
Speaker 3: have to come forward and show that they have a
Speaker 3: substantial basis for making that claim, and they fail to
Speaker 3: do that.
Speaker 2: So Fox said that smartmatics damages claims are implausible, disconnected
Speaker 2: from reality, and on its face intended to chill First
Speaker 2: Amendment freedoms. Does that sound a lot like claims that
Speaker 2: the judge dismissed in the dominion suit.
Speaker 3: Yes, you know, there's always an issue when there's a
Speaker 3: product disparagement claim about the adequacy of damage pleading, the
Speaker 3: specificity of those pleadings, and the ability to show causation.
Speaker 3: But if the claims are really just straight libel claims,
Speaker 3: corporate plantiffs still has real obstacles to proving things. Corporate
Speaker 3: planteff if it points to any specific loss, is going
Speaker 3: to have to show causation, and once that happens, becomes
Speaker 3: more complicated for them. So yeah, damages for a human being,
Speaker 3: for an individual is very different inlibel than damages for
Speaker 3: a corporation. So they are hard to show. And it
Speaker 3: probably would have been a complicated battle for dominion, and
Speaker 3: though those of all the different parts of their case
Speaker 3: that would have been perhaps the more vulnerable that would
Speaker 3: have been it and that will be the case here too.
Speaker 3: But you know, you do have punitives that are potentially
Speaker 3: in the wings here, and those could really kick up
Speaker 3: the value of the claim even if the underlying actual
Speaker 3: damage to the plaintiffs is less.
Speaker 2: Fox and one has nothing to do with the other.
Speaker 2: But the fact that they settle the dominion is that
Speaker 2: sort of an indication that they'll settle the smartmatic as well.
Speaker 3: It could be. I mean, I think we all feel
Speaker 3: that the reason for the settlement was the risk of
Speaker 3: having all these news anchors having to testify and the
Speaker 3: damage that that could do to Fox over a long
Speaker 3: and extended period of time while the trial was going on.
Speaker 3: Can happen here too, And just because an anchor or
Speaker 3: someone isn't named as a party to the lawsuit doesn't
Speaker 3: mean that they won't be a witness to it, because remember,
Speaker 3: the dominion case is really just against the Fox entities here,
Speaker 3: they're also against Barberomo and Hero and Dobbs and specific
Speaker 3: you know anchors, but they don't have to be named
Speaker 3: in order to land a punch on Fox. And so
Speaker 3: I would guess I would think when you read this
Speaker 3: three hundred page complaint, there are a lot of different
Speaker 3: names of anchors who come up here other than Dobbs
Speaker 3: and Bardiomo and Piero, and there's no reason that they
Speaker 3: couldn't be brought in as witnesses too. I don't know,
Speaker 3: I'd need to look at it more closely, and that
Speaker 3: may be something that's going to be very hard taught,
Speaker 3: and there'll be more discovery that probably comes out in
Speaker 3: this case. So yeah, they're probably great incentives for settlement
Speaker 3: as well. But then you know, in the wings again
Speaker 3: there's the share older actions that could be problematic. Employees
Speaker 3: who either resigned or fired that could create a problem
Speaker 3: is one of them that I know of. It's problematic
Speaker 3: for them. There's a lot happening, and there's a lot
Speaker 3: of blood in the water, and it makes it both
Speaker 3: more valuable for them to settle, but also more difficult
Speaker 3: to settle.
Speaker 2: Dominion and Smartmatic are both suing Newsmax Andaan, which went
Speaker 2: even further than Fox News in promoting the debunked conspiracy
Speaker 2: theories and the supposed election rigging. What do we know
Speaker 2: about those cases? Are they as strong as Dominion's case?
Speaker 3: I would think so, particularly if they're willing to go
Speaker 3: more you know, over the top. Then even Fox was
Speaker 3: because you did have some Fox anchors E. Tucker Carlson,
Speaker 3: for example, was challenging the supporting evidence for some of
Speaker 3: Sidney Powell's statements. So it's I don't think that you're
Speaker 3: likely to even see anything of that kind in the
Speaker 3: Newsmax and ola in cases. I don't know the details
Speaker 3: of those cases as much as I do Smartmatic or Dominion,
Speaker 3: but I'm sure the very same kinds of vulnerabilities are there.
Speaker 3: But again, there may be less actual malice evidence or
Speaker 3: evidence of disbelief by them. They could possibly try to say, oh,
Speaker 3: we were just relying on Fox. I don't know specifically.
Speaker 3: They could do a reliance argument, so you know, Fox
Speaker 3: is reliable and we just relied on them, and you know,
Speaker 3: we just went with what we heard from them and
Speaker 3: some of the people we interviewed. It probably won't work,
Speaker 3: and they're probably all kinds of difficulties internally for them.
Speaker 3: I mean, what's really interesting is we've all been looking
Speaker 3: at Dominion and yet the Smartmatic thing has been just
Speaker 3: ripping along. Number of filings in that docket in New
Speaker 3: York are just extreme ordinary. I think they're well over
Speaker 3: one thousand. There's a lot of stuff that'sn't happen in
Speaker 3: that case, and I gather people are saying they'll be
Speaker 3: tried sometime in twenty twenty five. There'll be motions before then,
Speaker 3: and probably a lot of news coming out regarding them.
Speaker 3: So there's a lot growing here.
Speaker 2: If Tucker Carlson is called to testify in the Smartmatic suit,
Speaker 2: I mean, you have a hostile person testifying against you, then.
Speaker 3: If he is parting ways with them, there's probably some
Speaker 3: understanding that he would need to continue to cooperate. It's
Speaker 3: possible that he was paid substantially as part of the deal.
Speaker 3: I don't know that. If he was paid, then there
Speaker 3: would be with it certain kinds of restrictions on what
Speaker 3: he could or couldn't do. He would surely have to
Speaker 3: cooperate with them and their defense that he sent they
Speaker 3: needed his testimony, So again, it's really hard to call
Speaker 3: at this stage. I think that people are going to
Speaker 3: learn a lot more about it as time passes.
Speaker 2: What do you think the long term impact of these
Speaker 2: cases is going to be.
Speaker 3: I'm a media defense lawyer. I represent news organizations, and
Speaker 3: so I'm constantly thinking how will this affect other claims
Speaker 3: made against other defendants. And you know, you can say
Speaker 3: that Fox is really a political organization and not a
Speaker 3: news organization. Some people say that, but they're protected by
Speaker 3: the same First Amendment protections, whether they're biased or not.
Speaker 3: So I think that what's going to happen is that
Speaker 3: the cause of a case like this, it will fuel
Speaker 3: plaintiffs imagination and they will all be trying to frame
Speaker 3: their own Fox type cases that they think they have
Speaker 3: against some other news organization. I don't think that those
Speaker 3: will be successful. They will be attempted, but I think
Speaker 3: they'll fail, partly because I don't think that you can
Speaker 3: actually get the kind of discovery of news organization's internal
Speaker 3: deliberations and sourcing as was the case here. This was unusual.
Speaker 3: They were able to get inside stuff and overcome what's
Speaker 3: called the reporter's privilege that protects against disclosure of internal
Speaker 3: editorial deliberations in context with sources and so on. They're
Speaker 3: able to get around it because there was so much
Speaker 3: reporting going on about Fox's reporting over an extended period
Speaker 3: of time. You know, there were insiders who were talking
Speaker 3: to news organizations saying, I saw this email, I saw
Speaker 3: that I was in that meeting. Here's what Suzanne Scott said.
Speaker 3: Once you have that kind of specificity and you say
Speaker 3: there was this email, I know it was there, I
Speaker 3: know what they said, then you're more likely going to
Speaker 3: be able to get it, even if the reporter's privilege
Speaker 3: is powerful, as it is in New York, even if
Speaker 3: it's asserted. So if you don't know what you're looking for,
Speaker 3: you can't get it. And those you can't just say,
Speaker 3: do you have anything in which you displayed any doubt
Speaker 3: about what you were publishing? You can't do that. That's
Speaker 3: fishing and the reporter which doesn't allow it, though in
Speaker 3: ordinary cases you could get it. And that's the problem
Speaker 3: that Fox has here, is that there was so much
Speaker 3: information out there, so many people who were being fired,
Speaker 3: so many people who resigned because their professional sensibilities were
Speaker 3: offended by what Fox was doing, and then they themselves
Speaker 3: either wrote articles, they themselves turned over documents to news
Speaker 3: reporters who then cited those things. And once that's out there,
Speaker 3: then it's harder to block that because then the claimant
Speaker 3: has the particular artive that allows them to overcome the
Speaker 3: reporter's privilege. And by the way, it was still heavily
Speaker 3: battled in the dominion case. In other words, Fox did
Speaker 3: assert the reporters privilege, but it was hard to do
Speaker 3: because the stuff was already out there and already identifiable,
Speaker 3: which is rare and in many libel cases, particularly those
Speaker 3: that just involved one article or one line or several
Speaker 3: lines in one article, which is really what most things
Speaker 3: are at one publication with a lot of different statements
Speaker 3: in it. But you're still not going to as likely
Speaker 3: to be able to overcome the reporter's privilege in those
Speaker 3: kinds of setting.
Speaker 2: Thanks so much for your insights, David. It's such a
Speaker 2: fascinating case or cases. That's David Corzenic of Miller Corsenic
Speaker 2: Summer's Raymond. And that's it for this edition of The
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