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February 14, 2024

The Settlement between Fox and Dominion: An Ordinary End to an Extraordinary Case

Jennifer K. Robbennolt, Jessica Bregant, & Verity Winship

In the aftermath of the 2020 presidential election, Dominion Voting Systems sued Fox News. In the high-profile and closely watched suit, Dominion alleged that Fox News personalities had defamed Dominion when they said that Dominion’s ballot-counting machines were rigged. The false allegations, Dominion said, cast “a then-little known voting machine company called Dominion as the villain” and gave “life to a manufactured storyline about election fraud.”

After more than a year of protracted pre-trial maneuvers, a jury was finally selected in April 2023. The case was headed to trial. But as witnesses and observers gathered for opening statements, the judge announced that the case had been settled, eliciting an “audible gasp” from those gathered in the courtroom. More astonishment followed, as it was disclosed that Fox News had agreed to pay Dominion a record-breaking $787.5 million. Over the following days, much was written about the amount of the settlement, the failure of Fox News to apologize, the parties’ reasons for settling, and what the settlement did (or did not) convey about fault.

Despite the dramatic setting and startling amount, the Fox/Dominion settlement is less surprising and more commonplace than it might seem. After all, settlement between the parties is the most common way that civil disputes are resolved. Beyond that, the reactions to the settlement are strikingly similar to the ways in which people react to settlements in more run-of-the-mill civil cases, and we have data to back that up. In a series of recent empirical studies, we asked nearly 2,000 people across the United States what they think a settlement is and why they think parties settle their disputes. What we found mirrors the public reactions to the settlement between Dominion and Fox.

Settlement and Responsibility

A common reaction to news of the settlement was that Fox News was acknowledging that it did something wrong. Michelle Goldberg of the New York Times wrote, for example, that the settlement “constitute[d] a humiliating admission of fault by the network.” In a press conference, Dominion also characterized the settlement as an admission, asserting that, “Fox has admitted to telling lies about Dominion that caused enormous damage to my Company, our employees, and our customers.”

Other commentators pointed to the outsized settlement amount as an acknowledgement of responsibility. On CNN, analyst Laura Coates commented that, “You’re not going to go ahead and pay that amount of money because you believe that you were ultimately truthful and that you were going to prevail.” Former Fox News contributor Margaret Hoover said that “$787 million is an admission—a legal admission—of lying.” In its press conference, Dominion explicitly made this connection, summing up the settlement this way: “Money is accountability.”

The participants in our studies made similar connections between settlement and responsibility, and between money and accountability. Participants suggested that a settling defendant “was guilty, so they paid [the plaintiff] to go away” or that a defendant settled because “[h]e was most likely at fault.” These reactions were not isolated. When we asked participants why they thought a defendant might choose to settle a case, about one third supplied reasons that suggested the defendant was at fault.

In terms of perceived responsibility, we have found that settling is just as bad for defendants as losing at trial. Indeed, the damage seems to be done at the moment the case is filed, and it can only be repaired (if at all) by winning the case. In an experimental study, we asked participants to react to news reports about a hypothetical personal injury case arising out of an accident. Some participants read that the lawsuit had been “filed,” some read that the suit had been “settled,” and still others read that the case had been tried and a verdict returned. Participants attributed less responsibility to defendants when they had been found not liable after trial. In all other instances, however, there were no meaningful differences in the degree to which participants thought the defendant was probably to blame for the accident.

Winners and Losers

Commentary about the Fox/Dominion settlement also largely characterized the settlement as a “win” for Dominion. To take just one example, legal scholar Laurence Tribe tweeted: “Dominion won a spectacular victory not from what it forced FOX to admit, which was nearly nothing, but from (1) how it collected ~6x its provable damages and from (2) all the amazing evidence of deliberate lies it forced into the open — evidence that FOX was desperate to conceal[.]”

The inclination to identify a winner (and a loser) in a settlement is also seen in the responses of our study participants. Some indicated that when there is a settlement, “one party wins against the other party” or that “[t]here’s a winner and a looser [sic].” Other respondents indicated that settlement means that “no one wins and no one loses,” but when we asked people directly whether a settlement was a win for the plaintiff, nearly half (44%) agreed that it was. Settlement was much less likely to be seen as a win for a defendant, with only 15% agreeing that it was.

Reasons for Settling

If settlement is widely viewed as an admission that the defendant did something wrong and often considered a plaintiff’s “win,” why would defendants like Fox ever settle? In the coverage of the Fox/Dominion settlement, commentators pointed to reputational and risk concerns. They observed, for example, that the settlement “spared Fox the peril of having some of its best-known figures called to the witness stand and subjected to potentially withering questioning” and from having to “air[] its dirty linen” in court.

Again, these reactions to the high-profile settlement align with those to more common civil cases. Our study participants recognized a host of reasons that parties might settle a case, echoing the Dominion/Fox coverage. In one study, we provided participants with a realistic example of settlement and then asked them to provide likely reasons that each party to the case might have had for settling. The most common reason that participants ascribed to the defendant was that the defendant was responsible for the underlying conduct or harm. But beyond inferences about responsibility and wrongdoing, study participants also suggested that the defendant settled because of concern about the evidence and the risk of losing, to minimize the harshness of any consequences, or to minimize negative publicity or reputational harm.

Participants also explained their inferences about why parties settled in their own words: “[T]he evidence shows his guilt. If he actually was innocent then he probably didn’t want to deal with the gamble that is court.” “They wanted to save face in the eyes of the media. They didn't want to tarnish their reputation.” “He might have settled because he didn’t want to go through the public spectacle of a lawsuit.” Another participant said that the defendant’s reason to settle was “[p]robably to try and sweep the issue under the rug and get it over with/out of the media cycle as soon as possible.”

Desire for Acknowledgment and Apology

In addition to the monetary payment, commentators also highlighted the lack of any apology or retraction as part of the Fox/Dominion settlement. The language that Fox would use in describing the settlement was reportedly a key issue in the negotiations between the two sides. It was reported that “One of Dominion’s biggest asks was a nonstarter for Fox: a public apology from the network for its role in implicating Dominion in a fictitious, algorithmically driven scheme to steal the 2020 election from Donald J. Trump. Fox’s insistence on no admission of wrongdoing at all was a nonstarter for Dominion.” Ultimately, in announcing the settlement, Fox stated, “We acknowledge the Court’s rulings finding certain claims about Dominion to be false.”

This heavily negotiated, non-apology, non-responsibility-taking “acknowledgment” led to headlines like the following: “Fox News Paid $787M to Avoid Saying ‘Sorry.’” Some observers criticized Dominion for not insisting on obtaining an admission or an apology from Fox. Late night host Jimmy Kimmel summed up his disappointment this way: “While obviously Fox is the main villain here, I also want to say nice going to Dominion. We naively thought that this was about making Fox News take responsibility for destroying their reputation because that’s what they told us that it was about. But, no, they took the money instead which means that the liars … don’t have to say anything about it at all, no apologies, no testimony.…” Comedians Stephen Colbert and Jordan Klepper created their own fictitious videos (heavily edited mashups) of Fox personalities giving the apologies the hosts wanted to see from the network. Dominion’s CEO, however, found sufficient recognition in the amount of the settlement: “Fox acknowledged what we needed it to acknowledge: Spreading false claims comes with a huge price tag.”

All of this angst is consistent with prior research, which has found that acknowledgment of wrongdoing and apologies can be very important to claimants. The desire for acknowledgment or apology can motivate litigation. Claimants often want reassurance that the wrongful behavior will not recur, and acknowledgment or apology is often understood as a signal of a commitment to reform. Acknowledgment or apology can even help to repair some types of harm. This may be particularly so in cases involving defamation in which a key harm is damage to reputation.

Of course, the comedians and commentators were not the claimants in the Fox/Dominion case. But the Fox/Dominion case is a good example of a case in which there is significant public interest. And the public, too, may want to be reassured that a wrong will not be repeated, a recognition of the public harm, and some measure of public accountability. As the commentators also recognized, however, Dominion was free to settle the case on terms that were good for the company.

Do everyday people with an interest in public cases like Fox/Dominion recognize the private nature of settlement? In our studies of lay understandings of settlement, we find that people tend to understand settlement as a private matter. They tend to think that parties should be able to define the terms of their agreements and that those decisions are no one’s business but their own. At the same time, however, we see hints in the results of our research and that of others that people do have concerns about the public impacts of settlement. They show concern, for example, about the broader harms that might result from private or secret settlements. This tension in how people think about the private and public aspects of settlement has not been widely studied and deserves more attention.

The settlement between Dominion and Fox is both special and not special. On one hand, it marked a sudden end to an incredibly dramatic legal and political saga. The hotly anticipated trial promised a spectacle of competing and politically charged narratives that involved larger-than-life characters, villains and heroes. Any potential verdict promised to have broad implications for media’s role in democratic systems of governance. And although the spectacle was largely stymied when the parties settled, the settlement itself was historic in its magnitude compared to other defamation settlements.

But the Fox/Dominion settlement was also ordinary. Most civil disputes end in settlement, and ultimately this high-profile dispute was no exception. Based on our studies, the many commentators reacted in the way the public usually reacts to settlement: inferring responsibility, attributing wins and losses, considering the many reasons parties may settle, and viewing settlement in its complexity as a private bargain with public implications.

    Jennifer K. Robbennolt

    University of Illinois College of Law

    Jennifer K. Robbennolt, JD, PhD, is the Alice Curtis Campbell Professor of Law, Professor of Psychology, and Associate Dean for Research at the University of Illinois College of Law. She can be reached at [email protected].

    Jessica Bregant

    University of Houston

    Jessica Bregant, JD, PhD, is an Assistant Professor of Law and Associated Faculty in the Department of Psychology at the University of Houston. She can be reached at [email protected]

    Verity Winship

    University of Illinois College of Law

    Verity Winship, JD, is a Professor of Law and Senior Associate Dean for Academic Affairs at the University of Illinois College of Law. She can be reached at [email protected].

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