An involuntary gasp came from the eager audience when it learned the circus was, after all, not coming to town.
In the crowded Wilmington, Delaware, courtroom Tuesday afternoon, after months of patient preliminaries and a fitful week of efforts to get the Dominion v. Fox News trial underway, capped by a tedious morning of jury selection, the contest was about to ensue.
Crack Texas litigator Justin Nelson, slender, young, and disarmingly mild, representing Dominion Voting Systems, was going to tell the jury how Fox maliciously maligned his client—the judge had already ruled that Fox’s stories were false. John Poulos, the aggrieved company’s fresh-faced Canadian C.E.O., was seated directly behind Nelson, a reminder that the lies aired about Dominion illicitly switching 2020 votes from Donald Trump to Joe Biden had hurt real people.
Then there was the internationally renowned attorney Dan Webb, much older, frail, bald, stooped, buttressed by a dozen younger legal attendants with all the focus and intensity an hourly fee of hundreds or even thousands of dollars can produce. Their task would be to somehow transform a toad into a handsome prince, to present the Fox propaganda mill as a paragon of American journalism, whose defeat would exact “a real cost [to] cherished First Amendment rights.”
Forgive me, I gagged.
There were so many journalists on the back benches that Judge Eric Davis had admonished them that morning to make less of a racket hammering the keys of their laptops. There were courtroom sketch artists and legal and media reporters from dozens of American and foreign newspapers, news services, TV networks, and media platforms.
Their task would be to somehow transform a toad into a handsome prince, to present the Fox propaganda mill as a paragon of American journalism.
Among those who arrived too late for a seat was superstar journalist Michael Wolff, who has written books about both Rupert Murdoch and Trump, and, among those credentialed but not seen, the multi-media legal-reporting phenom and author Jeffrey Toobin, lately embarrassed. Amid this notable, impressive, and very alert horde, all Internet-linked and hard at work feeding the insatiable maw with immediate analyses, tweets, and updates, sat me, armed only with my weathered notebook and pen, a relic.
All of us were looking forward to six weeks of drama. Dominion had promised to drag into court, one by one, under oath, Fox’s big guns, from owner Rupert Murdoch himself to Sean Hannity, Tucker Carlson, Maria Bartiromo, Lou Dobbs, and others. Pre-trial disclosures had already shown most on that list to have had strong doubts about the truth of the Dominion stories, which speaks tangentially well of them, but they aired them nevertheless in fear of alienating Trump cultists.
A proper circus was guaranteed. Already the plaza before the giant Leonard L. Williams Justice Center, a massive building with all the architectural flair of a printing machine, was thick with photographers, onlookers, and protesters (all anti-Fox, like the white-haired fellow with the MAKE EM PAY sign). This was, after all, Joe Biden country.
Dominion v. Fox News was going to lack the color and backwater flavor of the 1925 Scopes trial, but there were plausible parallels. With whole banks of legal specialists instead of William Jennings Bryan and Clarence Darrow, and set in the soul-less, tax-free heart of corporate America, this trial also concerned bedrock issues and was certain to generate weeks of lively headlines and journalistic scandal.
In Dayton, Tennessee, it was the Bible versus Darwin—Darwin lost. Today in Wilmington it would be, simply, Lies versus Truth, a clash that defines the modern age. Could Fox, in furthering Trump’s political agenda and its own bottom line, trash anyone it chose with complete impunity? Should legal protections for actual journalists who make honest mistakes shelter a sustained campaign of calculated falsehood? Could Fox News even be considered a journalistic institution? Does the truth even matter?
With all this poised at the gate, Judge Davis called for a lunch break and then … didn’t come back. For hours the audience mingled and speculated under the recessed lights and blank tan walls of the blandest courtroom imaginable. The lunch hour ended and … nothing. This was especially odd because Davis had spelled out just that morning the tight regimen he would enforce. The trial would last six weeks and no more. Lawyers who tarried would have time docked from their closing arguments. The gavel would fall each morning at 9:30 and again each afternoon at 4:30, convenient or not. Lunch would be ordered in for jurors to keep the meal break to an hour.
But the meal hour had passed. And then another.
I was not the only one with the nagging feeling, even as we approached the opening bell, that this brawl would never happen. What strategy might prompt Fox to place its biggest names in the witness box to be skillfully dissected by talented lawyers before a rapt worldwide audience? For six weeks? Dominion was asking for $1.6 billion, but … still.
Another hour passed. It was getting stuffy in the courtroom.
Webb had told the judge that his opening statement would probably last an hour and a half. If Nelson’s team, which was up first, needed the same, it was clear as the clock approached 2:30 that there would only be time for his. As it passed three, we knew we would probably be hearing neither.
Then, shortly before the hard afternoon deadline, Davis reappeared. In an offhand way, preparing to dismiss the jury, he said, “The parties have resolved their case.”
Then the gasp.
My guess is that most of my younger colleagues were disappointed. The Trial of the Century snatched abruptly from their grasp. Weeks of juicy revelations and sparkling analysis gone forever. Me? I felt mostly relief. Witnessing the show appealed mightily to me, but six weeks of riding a hard bench on my septuagenarian bum and bad hip? Less so.
I was also relieved for a better reason. The truth won. Skeptics may dismiss the $787.5 million Fox is coughing up as too little, but nobody can call it chicken feed. The network’s squirrelly admission of guilt fell well short of abject apology—“We acknowledge the Court’s rulings finding certain claims about Dominion to be false”—but over three-quarters of a billion dollars has an eloquence of its own.
It will not be enough to bring Fox to its knees, but it might make it more cautious about spreading outright lies. It still faces a similar lawsuit for even more money from Smartmatic, the other voting-machine company it smeared. And the settlement removes, for now, the prospect of the U.S. Supreme Court getting its hands on New York Times Co. v. Sullivan, the legal case that today is the standard protecting journalism from a flood of defamation suits by politicians like, say, Trump, who calls the press an “enemy of the people.” (An added wrinkle: one of Dominion’s lead attorneys was Tom Clare, who, partnered with his wife, Libby Locke, has been part of a conservative legal campaign to overturn Sullivan.)
Skeptics may dismiss the $787.5 million Fox is coughing up as too little, but nobody can call it chicken feed.
The bloated, scowling specter of the former president haunted the proceedings. While not named by Dominion, he was the smear’s primary author. “We have a company that’s very suspect,” Trump had said shortly after his loss in 2020, adopting the singsongy cadence he prefers when unspooling a whopper. “Its name is Dominion. With the turn of a dial or the change of a chip, you can press a button for Trump and the vote goes to Biden.”
He might as well have said that the mailbox on the corner had just held up a bank. What Trump suggested was not just false, it was impossible. Dominion machines scan and then store paper ballots, so even if the digital image of one were somehow changed, the original is there. Results can be readily checked, and often are. With no connection to the Internet, and with many thousands operating independently throughout the country, the machines cannot be controlled from a single point.
These were facts Dominion pointed out immediately. But Trump and his mouthpieces on Fox ignored the facts and then wildly embellished the smear: that Dominion was linked to the late Venezuelan dictator Hugo Chávez or, alternately, to right-wing boogeyman George Soros. See, this was no normal mailbox—it was designed by Emperor Ming of Mongo!
I was reminded of a story I wrote when I was just starting out, almost 50 years ago, as a kid reporter in Anne Arundel County, Maryland, for the Baltimore News-American. I spent the afternoon in the house of a local family that insisted, with stirring conviction, that it had been visited the night before by aliens from another planet.
At the time I considered it my job to merely report what I saw and heard, and this story struck me as, at the very least, a queer feature. My editor, Lou Linley, read it and said, “This is amusing, but it’s not running in our newspaper.” If I insisted on taking these people seriously, he said, I should do more reporting, which I did. Neighbors explained what outrageous fantasists my subjects were, and none had seen or heard a thing to support their story. There was laughter. My story never ran.
Trump’s tissue-thin story about Dominion would not have survived the first scratch from a real reporter. Why not find out how the machines work? If Dominion was considered untrustworthy, call a voting technician familiar with such machines. If you were worried about political bias, why not ask, say, Clint Hickman, the pro-Trump chairman of the key 2020 election district of Maricopa County, Arizona, which used Dominion machines? Maricopa was critical to Biden’s victory. If anyone had direct evidence of Dominion voting manipulation, and the political motivation to expose it, it would be Hickman. (In fact, he defended the honesty of his county’s vote and the accuracy of its machines.)
Instead, Fox and other Trump-aligned platforms simply broadcast Trump’s clearly self-serving nonsense. Facts either did not matter or there wasn’t an actual reporter in the building—very likely both.
It remains to be seen if Trump will pay a price in this world for his sins, but large as Fox’s payout was in Wilmington, the reckoning may have just begun for Murdoch, his news anchors, and prominent conspiracy theorists such as Rudy Giuliani, Sidney Powell, and Mike Lindell, the pillow magnate.
Fox has already settled a suit brought by a Venezuelan businessman who was linked to the fictional fraud by Dobbs and Powell. Smartmatic is seeking $2.7 billion from the network and is also seeking damages from Bartiromo, Dobbs and Jeanine Pirro. The right-wing news channel Newsmax recently settled a lawsuit by a Dominion employee who was falsely accused of fraud, and there are more than a dozen other lawsuits around the country launched by aggrieved individuals, from the Erie, Pennsylvania, postmaster who was chased out of town by false rumors that he was in on the supposed fix, to Atlanta election workers who were named by Trump and Giuliani as architects of vote “rigging” in Georgia.
To those of us who felt the country slipping over an existential cliff during Trump’s brief tenure, this was a corrective to be devoutly cherished. As Nelson said outside the courtroom Tuesday afternoon, squinting into the setting sun, “The truth matters. Lies have consequences.”
To me, the moment that sealed Fox’s fate happened five hours earlier. It was probably not the real decisive factor. The negotiations that settled the lawsuit took place elsewhere. Nelson and Webb and their retinues were in the courtroom with everyone else during those hours of waiting. But, from my place on a back bench, the jig was up for Fox once the jury was sworn in.
To those of us who felt the country slipping over an existential cliff during Trump’s brief tenure, this was a corrective to be devoutly cherished.
Judge Davis had already painfully narrowed the network’s path, mostly by ruling that its Dominion claims were false. He wrote that this finding was “CRYSTAL clear,” the first time I have ever seen a judge resort to both capitals and bold type in a decision.
Then he told Fox it could not defend its lies as “newsworthy” since, newsworthy or not, they could still be defamatory. Nor could they argue that they were simply airing the opinions of others—Giuliani, Trump, Powell, et al. In doing so it was, Davis explained, a “publisher,” and bore responsibility for what it presented to millions of viewers. It was hard to imagine how Fox could worm free of these perfectly reasonable findings. But then, that’s precisely why high-priced legal talent is high-priced.
To me, the key moment came when, into this courtroom of keenly poised professionals, came a sampling of ordinary Delaware humanity, some of them frumpy, many overweight, of various sizes, ages, colors, and genders, some dressed in hoodies and T-shirts with slogans like PINK or touting favorite bars.
Assuming I’d be watching them for weeks, I assigned nicknames, among them “Bruiser,” a tall, burly, middle-aged Black man in a black hoodie with a scruffy beard who looked bored before the thing even started; “Schoolmarm,” a smartly dressed young Black woman with elaborately braided hair piled high and tinged maroon; “Professor,” an elegant middle-aged white woman in glasses with long white hair; “Golfer,” a sunburned, tall, white middle-aged man in a sports shirt who looked like he had been plucked, stunned, from springtime links, and so on.
These folks were going to hear the lies Fox aired about a small company that got into the business of making voting machines in order to make it easier for blind and disabled people to cast ballots. They were going to hear about its destroyed reputation, and about its workers braving years of death threats and vile harassment. Then they would listen as Dan Webb, with no doubt magical rhetorical legerdemain, tried to make all this seem O.K.
I looked at the panel, and I looked across at the rows of Fox lawyers, and I said to myself, No way.
Mark Bowden’s latest book is Life Sentence: The Brief and Tragic Career of Baltimore’s Deadliest Gang Leader
