The Dominion Debacle: Money Rules

For one brief, shining moment, I thought we might climb out of our national pit. Dominion Voting Systems Corporation had sued Fox for $1.6 billion. Even that amount would have been only a hard slap on the wrist for Fox. Its 2022 corporate revenue was $14 billion.

But in civil suits involving wrongdoing, a plaintiff can ask for punitive damages, too. Our Supreme Court has limited the ratio of punitive to compensatory damages to “single digits,” i.e., a maximum of nine. See State Farm Mutual Insurance Co. v. Campbell, 538 U.S. 408 (2003). Nine plus one (the compensatory award) equals ten. So Fox might have lost up to sixteen billion dollars—more than its highest ever annual revenue, let alone profit. That might have shut Fox down.

But you can’t “win” punitive damages when you settle. By settling, Dominion gave up the very real possibility of breaking Fox and shutting it down for good.

I don’t blame Dominion or its management. Although its case was strong, it might have lost the lawsuit. Anyway, its highest annual revenue, in 2022, was $17.5 million. The settlement that Fox reportedly agreed to pay, $787 million, is over 44 times that amount. When you have a chance to “earn” forty-four years’ worth of revenue after a grievous wrong that badly damaged your business, you take it.

But here’s the rub. Although Fox now seems a permanent fixture of our national politics, it has been in business for less than 27 years. Many young people can’t remember our nation without its ubiquitous, dominating, disrupting presence. But I can. So can tens of millions my age, or even a generation younger.

What I remember was still a noisy, raucous country. But at the end of the day, we addressed real problems rationally and competently.

Richard Nixon’s lawlessness and unrestrained lust for power brought us Watergate. But even he also signed into law the EPA and OSHA. He opened the door to normal relations with China, with his famous trip there. (He was the only one who could have managed relations with China politically, because he had spent his entire previous political career—quite successfully—demonizing China as a lawless, godless, Communist menace.) Nixon even tried wage and price controls to curb inflation, until they didn’t work.

Richard Nixon resigned the presidency more than twenty years before Fox started up. Now Fox has helped change all that. We as a nation no longer solve problems with skill and reason. We no longer try out solutions to see whether they work. Instead, huge minorities of us joust with demons and phantoms, like Don Quixote with windmills.

They obsess about things like abortion, alleged welfare cheating, and the rising influence of minorities (a good thing in a society believing that “all . . . are created equal”). They worry whether the poorest and most downtrodden among us are working hard enough. They let a minor industry, small arms makers, wax rich by putting weapons of war on our streets, in our homes, in our schools and in our shops. They ignore the sale of most of our manufacturing base to China and Mexico. They support a military in bed with big business, focusing on the last century’s strategic weapons and neglecting this century’s, including cyberwarfare and AI. They let slide the increasing militancy of dismal tyrannies like China, Russia and (someday soon) Hungary, and the rampant money-based corruption of our politics, business, and national social life.

Fox is not the only culprit. The GOP conceived the idea of turning ordinary Americans against their government. In 1981, Ronald Reagan told us, “[G]overnment is not the solution to our problem; government is the problem.”

Ever since, a great mass of ordinary people have come to despise or disrespect their own government for which they vote. They despise the same institutions that pay their Social Security and Medicare, make the rich pay taxes (less so now!), provide for their military defense, clean the air they breathe, the water they drink (less so now!), and make sure that the cars they drive, the airplanes they fly in, the products they buy, and the food and drugs they consume, are safe and work as advertised.

Fox didn’t start this insane trend. The GOP did, in order to distract public attention from the oligarchs’ creeping theft of our national patrimony. But Fox has put the insanity on steroids and injected it into tens of millions of ordinary Americans.

So today, we have a nation that literally can’t think straight. A large part of our population won’t take the miraculous Covid vaccines that their own Dear Leader had the government help develop and approve at “Warp Speed.” Millions of us don’t seem to care when Russia, our traditional arch-enemy, threatens all of Europe—the origin of our civilization, the flashpoint of the most terrible war in human history (so far!), and a place that reliably shares our democratic and Enlightenment values.

Most of us don’t seem to care that we have almost entirely lost our great manufacturing base, with all its intrinsic research and development. We yawn as we come to depend for income on “service” mavens—account executives, business-school graduates, professional “influencers,” and yes, lawyers—who make a lot of money but don’t know the difference between an oscilloscope and a radar screen.

Is Fox solely responsible for this madness? No. But according to its own puffing, Fox is the most powerful single “news” organization in America.

Its open dirty secret is that it doesn’t sell “news.” (That’s why I never refer to Fox by its corporate name, which I see as fundamentally a lie.) It pushes propaganda in the form of entertainment. In the process, its blowhards prey on its audiences' darkest impulses—fear, hate, insecurity, jealousy, and rage. In less than three decades, Fox has helped turn a rational, problem-solving nation into a hellhole in which an 85-year old coot (in sleepy Kansas city!), could shoot a sweet, happy teenage boy in the head merely for appearing on his threshold. Too many of us have become demented, and too many of the demented have deadly weapons.

In my view, of all the institutions and organizations in America today besides the GOP, Fox is the one most responsible for this precipitous decline. Fox is our chief public communications engine driving fear, hate, and division. It powers the Federalist Society, too, by giving its backward-looking and reactionary views credibility and popular support.

We had a real chance to shut Fox down. Never have I seen such evidence of “actual malice” in a defamation suit. Never have I seen malice (defined as reckless disregard for truth or falsity), so well documented in recorded utterances, e-mails and texts—in this case by Fox’ own blowhards and high executives.

That chance is gone now. Dominion will be vindicated and a lot richer. Our oligarchs and über rich, including Murdoch, will be all the more powerful. And life, and national decay, will go on.

But the Dominion settlement marks a dark, dark day for America. It puts an exclamation point on our national corruption, which went into overdrive with Citizens United, our Supreme Court’s most misguided decision since Dred Scott (which forced so-called “free” states to enforce our fugitive slave law and helped spark our Civil War). It proves that money can “fix” anything, including the most terrible, grievous wrongs. And it demonstrates precisely how a near-absolutist view of the First Amendment will undo us, and is already doing so, relentlessly, day by day.

A Note of Hope. There is another similar lawsuit that could shut Fox down. Smartmatic Corp. of Boca Raton, FL, has sued Fox for $2.7 billion on similar defamation claims. If Smartmatic wins its entire claim and maximum punitive damages, that could cost Fox $27 billion and almost certainly put it under. But Smartmatic will have the same financial incentives to settle as Dominion, and so could give up its attorney’s current goal of “holding Fox accountable for undermining democracy.” We will see.

The View from the Caucasus

Thirty years ago this spring, I was in Moscow, Russia, teaching on a Fulbright Fellowship. Near the end of my fellowship, I was invited to a conference, in Russian, on “Power, Law and the Press.”

Those were the halcyon days of “glasnost’” (transparency and openness) and “perestroika” (restructuring) in Russia. So part of the conference addressed our American approach to a free press, though the attendees, apart from me, were twenty Russians and two Germans.

At some point, a bull-like, red-haired Russian journalist lambasted the notion of free press. What should a journalist in the Caucasus do, he thundered, if a rumor arises that citizens of Ethnic Group A have murdered seven citizens of Ethnic Group B? In one case, he reported, a newspaper published such a rumor; the next day citizens of Ethnic Group B murdered ten citizens of Ethnic Group A. How can you countenance a free press in that situation?

As all eyes turned to me, I replied that press freedom doesn’t force you to publish rumors. There is such a thing as journalistic responsibility. A responsible press, aware of the potential for inciting violence, might not publish the rumor even if verified. (I wasn’t smart enough then to point out that, even in the US, the paper could be sued for defamation if a published rumor were false and recklessly checked.) The Russian journalist huffed and replied that people’s lives should not depend on journalists’ discretion; the government should intervene.

In subsequent years, turmoil in Chechnya and other parts of the Caucasus—not to mention places as far away as India, Iraq, Israel, and Sudan—has highlighted the dismal reality of Russian journalist’s question. To this day, I’ve never conceived an entirely satisfactory answer.

His question hangs in the air as Rupert Murdoch and his Fox empire divide us Americans by ethnicity, religion, social class and politics, not in the service of truth or any abstract notion of good journalism, but in a quest for ratings and profit. Incitement seems part of their business plan.


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