CNN: ‘They probably would have lost’: First Amendment lawyer on Fox settlement

First Amendment and Constitutional lawyer Floyd Abrams says this largest ever known settlement between Fox News and Dominion should be a warning to those who engage in “the worst of journalism.” #CNN #News

Transcript

Floyd Abrams is the doyen of First Amendment law in America, and he’s joining me now from New York. Floyd Abrams, it’s great to have you on on this day to to take us through this. So from your perspective, you know, essentially defending the media. Is this a case where justice has been done,

Do you think? I think justice has been done in the broadest monetary sense that we’ve ever seen, really in any libel case in American history. Whether justice has been done in the sense that the lesson that Fox News and perhaps others will learn is to be not only more careful,

But simply not to engage in the sort of of false editorializing and putting people on who lie. You know, I can’t say I’m that optimist I take that that that will change much. But I think that’s at least a waving red flag. What do you make of the fact that

And how did folks get away with or is this de rigueur for settlement not having to apologize on air for its defamation? And also, as you noted, in its statement, it said that the I believe it said it acknowledges that the judge found certain statements about dominion to be false.

Well, the judge said every single statement that Fox News reported about Dominion and the election was false. That’s what the judge said. That is what is obviously true. The judge, in a written opinion, made that very clear. In fact, he used capital letters. It is crystal clear. He said that all the statements

About Dominion were false. And so they were. Well, it seems like a massive game of chicken was being played. I mean, right down to the to the last second the jury had been seated. The opening arguments were due to start. You know, there’d been this delay the day before.

Well, you know, this the procedure. What do you think was happening behind the scenes talking or talking about talking Both sides had an interest in disposing of the case. Fox’s interest as obvious because it would have been, at least in the broad public opinion, ruinous in terms of how people,

Not the Fox viewers, But but how more people viewed Fox as a propaganda outfit. So there was a lot a lot of reason for them to settle The other reason was I think they probably would have lost, even though we have a legal system which is very sort of loaded, purposely

In favor of free speech, which makes it very hard to win a libel case like this. But this one was a very strong case And then looking back on it, certainly it’s not surprising that Fox would make every effort to somehow put this behind it. And why do you think then

Dominion settled, you know? Yeah, why? Well, you know, Dominion is a business of dominion is business as not not litigation, but but to make itself whole again, no one’s ever won or obtained an amount like this. If if there’s anything that can be gained by a libel case in the sense

That the public to the extent the public followed this, the public would know that that that Fox had erred or really worse than purposely put false information on the air. Dominion has done that. Whether the Fox viewers will view Fox any less cordially and in terms of inviting it

Into their home, I rather doubt it. Let me ask you about some of the tweets from Andrew Neil, who used to be an insider. You know, he ran Murdoch’s Sunday Times here in the U.K. He ran Sky News at one point. And I spoke to him yesterday. Right

As we thought this trial was going ahead. After the settlement, he tweeted that it doesn’t end there for Rupert Murdoch. Another voting machine company, Smartmatic, is suing for 2.7 billion with perhaps even a stronger case. Plus, his shareholders could sue him or Fox, the parent company, for diminishing their assets. One already has.

And he goes on to say, but it’s already cost far, far more than the U.K. hatching hacking scandal with much more financial exposure. Still to come will strengthen that part of the Murdoch family, which wants to dump Fox News. What do you make of that? Do you think that. Yeah, go ahead.

No, know, I’m sure I think that’s quite a prescient observation. It’s all the things on that list of statements I think are accurate. Yes, there certainly will be litigation by shareholder FOX. And yes, certainly in terms of Fox’s reputation and whether people at Fox on the financial side will really want to continue

With Fox News, that that’s a harder one. Certainly, Fox News is by far the best known Fox product, whether Fox, whether the people who run Fox will have found this all so distasteful that that they’ll even think about divesting itself from Fox News as a precedent. I don’t think anybody has any idea.

But let’s ask the bigger question. And Floyd Abrams, you’ve been in the middle of this for four decades. You know, a free and independent press in a democratic country is a is a major and important pillar of a functioning democracy. Do you think this trial has made that more likely and less

Or do we think that Fox and the attendant even further right wing conspiracy theorists and all the others will continue to get up to mischief with their so-called reporting or commentating on the upcoming elections? Yeah, look, my judgment, my guess is that Fox will not change much.

My guess would be that, yes, they’ll they’ll send instructions down, you know, don’t do this sort of thing again. We don’t we don’t need this trouble and this enormous amount of money being being paid out. But in terms of whether Fox will change what I’ll call editorial policy, we’ll

Well move it all off towards the center or even to caring more about avoiding the correct charge of propaganda. One can’t tell. My guess is I’m afraid now you say the correct charge of propaganda. That’s interesting. Dominion lawyer Justin Nelson, after the settlement said this to CNN. Take a listen.

I do hope that this really does send a message that it is so, so important to tell the truth and that if you don’t tell the truth, lies have consequences. And I think this is what it established. And that is why there is accountability today. There’s accountability to dominion

And there’s accountability to democracy. So, Floyd Abrams, we discussed a little bit the other side of that question is how does this, in the bigger picture, potentially change the decades old New York Times versus Sullivan of 1964 which established a very, very high bar for libel and defamation it’s almost impossible

For media companies to lose in these cases. Do you think in the future either the Supreme Court or elsewhere that law, that precedent will be changed? Well, first, I don’t think it will be changed because of the result. The settlement in this case As for whether it will be changed

Because we’ve had a change of membership on our Supreme Court that is more possible now than it had been in the past. Two members of the court have already in writing urged that it be changed. And there’s reason to think that there are more that would be if I had to guess,

I would say it will not change in the foreseeable future. I don’t think that five of our nine Supreme Court justices are going to be prepared to say that this precedent from 1964, which certainly in general has served us well as a freedom protecting body of law. I don’t think that

There are going to be five votes but I may be, as they say, whistling Dixie. So finally, let me ask you from your decades and decades of experience in this. What feeling do you have right now. You know you started many many years ago defending the press as well as many other

You know, corporate cases. You’ve taken all the rest of it. But what’s your feeling now looking back at history and to the future? It was very important, in my view, for Fox and one way or the other to lose this case. For one thing, New York Times versus

Sullivan is not an impenetrable barrier to plaintiffs with very good cases winning. I think, as I’ll bet Fox thought that there was a very good chance Fox would lose this case had it gone to the jury. I think it’s more likely than not that that would have happened in terms of the impact

Really on democracy. I think we’re better off for having had this case. I think it does send a message I think it is a warning, at least to the sort of entities that would be prepared to engage in the worst excesses of of the worst of journalism,

To be careful that that it is not a get out of jail free card that the Supreme Court has given. It’s just very, very hard to win a libel case here brought by a public figure. And it should be.

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