An interesting argument from an even more interesting source, considering that the Wall Street Journal shares an owner with Fox News. News of the utterly predictable decision by the Murdochs to settle the Dominion defamation suit prompted wailing and gnashing of teeth from competitors and journalists throughout the land, who had wanted the court to force Fox and its hosts to admit on the air that they lied about “stop the steal.” WSJ’s editors quote Politico’s overwrought observation that “hopes were dashed — dreams torpedoed” as “hilariously revealing,” but as I noted yesterday, they were hardly alone in weeping over a lost apology.

“Dreams torpedoed,” though? Come on, man.

The WSJ editorial board doesn’t carry much of a brief for its sister org in the Murdoch empire, either. The editors call the settlement a “victory for Dominion” and noted that the WSJ had held from the start that the claims made by Fox had no evidence to support them. With that said, however, the editors argued last night that Fox had essentially taken one for the industry last night — and that all of those who wanted a full trial should thank Fox for avoiding one:

As much as the media ached for a Fox defeat in court, they ought to thank the company for settling. A verdict against the network might well have hurt the rest of the press by making it harder to defend against defamation claims.

The network would no doubt have appealed a negative verdict in Delaware court, where the trial judge made rulings and comments that suggested an anti-Fox bias. Had the appeal made it to the U.S. Supreme Court, the Justices might have reconsidered their 1964 precedent in New York Times Co. v. Sullivan. That ruling requires plaintiffs to prove that false statements against public figures are made with “actual malice.” Justices Clarence Thomas and Neil Gorsuch have said they would like to revisit that standard.

The media cheering for Fox to lose were in effect cheering for a verdict that could have meant more lawsuits, many of them meritless, against journalists. Their hatred of Fox and conservatives is so strong that they ignored their self-interest.

Er … maybe. The way that the discovery releases were trending didn’t appear to make Sullivan much of an issue, though. The judge in the case had already ruled that Fox’s claims were false — a point to which Fox was forced to publicly stipulate in the settlement — and that those claims objectively defamed Dominion. The only point left to tackle in a trial was whether the combination of those amounted to “actual malice” in the Sullivan sense — in other words, that Fox knew or should have known the claims were false but aired them anyway. There wasn’t a risk of a jury verdict of liability without meeting the Sullivan standard, in other words.

And how close did Fox think Dominion would come to meeting the Sullivan standard? They paid $787.5 million and admitted culpability to avoid finding out. And by settling, they waived any rights to appealing any of the rulings in the case, including those by the judge of false claims and defamation.

It’s true that Clarence Thomas and Neil Gorsuch have expressed concerns over Sullivan and the impunity it has given media outlets in the last 60 years. A test case for this would almost certainly have to come from a case that plaintiffs lost, however. If a jury found that a defamation case met the Sullivan standard of “actual malice” and awarded damages to the plaintiff, why would an appeals court take up the Sullivan precedent at all? An appeal would have to come from the respondent media org, which would argue for a firmer application of Sullivan rather than eliminating it.

It’s possible, one supposes, that the court could eliminate the earlier precedent in such a case, but it’s a real stretch. Courts tend to work narrowly on such issues, and it would be much easier in the above scenario to just respect the jury finding rather than toss Sullivan since the outcome in such a scenario would be the same either way. If Sullivan gets overturned, it will be in a case where a middling “public person” is clearly defamed by a media outlet but can’t meet the “actual malice” super-standard, and appeals on the basis that Sullivan‘s super-standard is unconstitutional. And even then, it’s not clear that anyone on the current Supreme Court other than Thomas and Gorsuch would reconsider Sullivan.

In other words, this may be as fanciful an argument as “hopes were dashed — dreams torpedoed.”

Get ready to see it play out all over again, because Fox now has to deal with an almost-identical defamation claim from Smartmatic. And thanks to the way Fox dragged out the Dominion case and then abruptly raised the white flag, Smartmatic may present an even more formidable foe:

Damning emails, texts, and deposition testimony made public during the Dominion case revealed that on-air hosts and executives, and many others at Fox, privately said in 2020 that the vote-rigging claims against Dominion were asinine. But the lies were spread on-air anyway.

Smartmatic says it plans to pull back the curtain even further.

“Dominion’s litigation exposed some of the misconduct and damage caused by Fox’s disinformation campaign,” Smartmatic lawyer Erik Connolly said in a statement after the settlement. “Smartmatic will expose the rest. Smartmatic remains committed to clearing its name, recouping the significant damage done to the company, and holding Fox accountable for undermining democracy.”

Fox settled the case with Dominion in order to prevent its executives and hosts from having to testify in open court and open themselves to cross-examinations. Smartmatic knows this and will sharpen their knives even more in the meantime. Fox knows this too, which is why media orgs around the country should prepare for hopes to be dashed and dreams torpedoed again with a settlement … and this time, before all of the discovery materials get made public in this case.