The Defamation Trial That Never Was | Crooked Media
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April 18, 2023
What A Day
The Defamation Trial That Never Was

In This Episode

  • The defamation trial brought by Dominion Voting Systems against Fox News was called off after both parties agreed to settle for $787.5 million at the last minute. Crooked news contributor Max Fisher joins us to break down what happened and what comes next.
  • And in headlines: The white homeowner who shot 16-year-old Ralph Yarl turned himself in to Missouri authorities, a Russian judge ruled that Wall Street Journal reporter Evan Gershkovich must remain in pretrial detention, and Nebraska lawmakers passed the first bill in their 90-day legislative session.

 

Show Notes:

 

 

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For a transcript of this episode, please visit crooked.com/whataday

 

TRANSCRIPT

 

Priyanka Aribindi: It’s Wednesday, April 19th. I’m Priyanka Aribindi. 

 

Juanita Tolliver: And I’m Juanita Tolliver. And this is What A Day where we are busy comprehending this flurry of new celebrity couples. 

 

Priyanka Aribindi: Yeah, Timothée Chalamet and Kylie Jenner, Bill Hader and Ali Wong, Shawn Mendes and Camila Cabello part two. I don’t know all these. I’m not into it. I don’t I can’t– 

 

Juanita Tolliver: I mean. 

 

Priyanka Aribindi:  –[?] not into it at all.

 

Juanita Tolliver: Keep doing you rich people. Rich celebrities do what they want. [music break]

 

Priyanka Aribindi: On today’s show, the 84 year old white man who shot Ralph Yarl, a Black teenager, has turned himself in to authorities in Kansas City, Missouri, a day after he was charged with first degree assault and armed action. Plus, life goes on on the great Pacific Garbage Patch. 

 

Juanita Tolliver: But first, the Dominion Fox trial ground to a halt yesterday before we even heard opening statements when the two parties reached an agreement and settled on a $787.5 million dollar payout from Fox with no apology on air. Which in my mind means that Fox kind of won and our democracy lost. Before we dig into the details of this settlement, let’s do a little bit of a refresher. Back in 2021, Dominion voting system sued Fox for $1.6 billion dollars for spreading lies about the 2020 election and blaming Dominion voting machines for malfunctioning, which was a boldfaced lie. In recent weeks, text messages and internal emails and conversations from Fox showed that executives and on air talent knew the lies were exactly that, and they broadcast them anyway, along with featuring primary perpetrators of those lies on air, namely Rudy Giuliani and Sidney Powell. Fast forward to April 2023, and just as the jury was set and sworn in, Fox narrowly avoided having all of their dirty laundry aired by reaching a settlement with Dominion. As I mentioned before, the terms are steep. In fact, this is the largest known settlement in a U.S. defamation case, but they’re still pretty amicable for Fox, considering what a jury could have ordered them to pay and apologize for. After the settlement was announced. Fox released a statement that read in part, quote, “We are pleased to have reached a settlement of our dispute with Dominion Voting Systems. We acknowledge the court’s rulings finding certain claims about Dominion to be false.” Insert a massive side eye because that was not an admission of guilt. That was not any any bid of accountability or taking responsibility  

 

Priyanka Aribindi: Seriously I I missed even the apology for lying so blatantly about this company and this election. It it really is like Juanita you and I have been sitting here being infuriated. It really is infuriating. 

 

Juanita Tolliver: Like picture flames in our hair. That’s that’s the visual people.

 

Priyanka Aribindi: [laugh] Truly. 

 

Juanita Tolliver: That’s how heated we are. 

 

Priyanka Aribindi: Yeah. 

 

Juanita Tolliver: Dominion CEO John Poulos held a press conference outside of the courthouse in which he celebrated the settlement. Take a listen. 

 

[clip of Dominion CEO John Poulos] Fox has admitted to telling lies about Dominion that caused enormous damage to my company, our employees and the customers that we serve. 

 

Juanita Tolliver: One of Dominion’s lawyers, Stephen Shackelford, also spoke and had this to say. 

 

[clip of Stephen Shackelford] Money is accountability. And we got that today from Fox, but we’re not done yet. We’ve got some other people who have some accountability coming towards them. And I’m very proud of the team from Susman Godfrey that has worked tirelessly for this case. And we’ll move right on to the next one. 

 

Priyanka Aribindi: Okay. Money just absolutely not the same as accountability. No, that’s just false. But also very much underscores something that we’re going to get into very shortly, just about how corporate like this this whole case is like it really is the truth of the matter here. And like, while we think we’re talking about, you know, election lies, the big lie, whatnot, like it really this whole thing is rooted in these corporations and and their bottom lines. And that’s why we’re here. And it sets the tone for all of it. 

 

Juanita Tolliver: I feel like we should be playing cash rules everything around me, cream is– 

 

Priyanka Aribindi: Seriously. 

 

Juanita Tolliver: –the money by Wu-Tang Clan because it’s all about the money. So– 

 

Priyanka Aribindi: Yeah. 

 

Juanita Tolliver: Naturally we have tons of reactions to all of this breaking news. And we had a chance to talk with Crooked news contributor Max Fisher to break all of it down. Max, welcome back to WAD. 

 

Max Fisher: Hey pals, back so soon. 

 

Priyanka Aribindi: Truly quicker than I thought you’d be back. But we are always happy to have you. Let’s jump right into these questions. This trial was set to start yesterday and it was expected to last six whole weeks, but it was called off just hours after the jury was selected because at the last minute, both parties agreed to settle. So what can you tell us about what happened in the courtroom and what do we know about the settlement? 

 

Max Fisher: So the settlement is big. It is 787 and one half million dollars, which is a lot. It is, depending on how you count it, the largest settlement ever that has been publicly revealed in a media defamation case, which, of course like we talked about incredibly hard to successfully prove defamation against the media. There’s one that’s arguably higher against Alex Jones for 1.4 billion, but that’s only if you count Alex Jones as a journalist, which I do not personally. 

 

Priyanka Aribindi: [laugh] No. 

 

Max Fisher: By comparison, one of the next largest, biggest ones was for only 177 million against ABC News. So like way less than a quarter. So it’s really, really big. It’s huge as a share of Fox News’s earnings. It’s way more than they made the last quarter of last year. So this is a really big damage for them. It does not include them having to apologize on air. And it also, of course, this is the value to Fox News gets them out of having to go through with the trial. So we don’t know exactly what happened was the maneuvering at the last second that led them to put off settling for so long and then all of a sudden to do it. But Dominion got what they were looking for, it seems like. 

 

Juanita Tolliver: So prior to yesterday, though, there were reports that settlement talks were going nowhere, actually. And we know Dominion officials did previously say they wanted that on air apology. Which now we know they’re not getting I’m looking at that like a major win for Fox, but knowing that Dominion caved in this settlement without that apology, knowing that there is a payout for Fox, what do you make of that weak statement that we did get from Fox and the reality that the people can’t be sure that Fox won’t ever blatantly lie at this scale again? 

 

Max Fisher: So this trial has always felt to me and I think has felt to a lot of us who were following it closely, like it would be a vehicle for public accountability, public accountability for Fox News’s role in perpetuating the big lie about election fraud and inciting the January 6th insurrection and it– 

 

Juanita Tolliver: That part, because I think that’s getting lost in the conversation. Their coverage– 

 

Max Fisher: Well– 

 

Juanita Tolliver: –explicitly riled up additional folks along with of course Trump’s rhetoric. 

 

Max Fisher: And and the reason that it’s getting lost in the conversation is that it was actually that was never what this trial was about, even though that was what it felt to us like it was about. This was always just about corporate damages for a, by comparison, pretty small voting machine company. And I think we kind of wanted them to be the like white knight hero, crusading for American democracy and the American people. And I think they did like meaningfully this case has advanced that. But the reason that that wasn’t front and center is because that was never what this was about. 

 

Priyanka Aribindi: What about Dominion? You know, what have they had to say about this settlement? 

 

Max Fisher: They wouldn’t have taken this money unless they were happy with it. They were clearly very ready to go to trial and clearly thought that they had a pretty good case here. And they have, of course, a bunch of other defamation suits that are already in progress against other people over this same Election lie so I think that they’re thinking about getting the best deal for their interests out of Fox News, and they appear to feel that they got that and also positioning for these other trials to show like, look, we can get a lot of money for this lawsuit, for these defamation charges, so you better pay up. 

 

Juanita Tolliver: Another stark reminder that this is business man [laugh] like that’s exactly what I’m– 

 

Max Fisher: Yeah. 

 

Juanita Tolliver: –gleaning from this. 

 

Max Fisher: Yeah. 

 

Juanita Tolliver: And I know you said that this amount is massive for Fox, but let’s be real. They’re still going to make money hand over fist. Their viewership is not leaving them any time soon. 

 

Max Fisher: Well, that was the problem is their viewership was leaving them. That was what came out in all of this discovery is that they initially said and we know from these emails, they said we are not going to follow Trump on the big lie. We’re not going to follow Trump on him lying about the elections. And then they started losing viewers in big numbers to Newsmax to One America News. And they said, you really see they did this out of fear. 

 

Juanita Tolliver: Ah. 

 

Max Fisher: This wasn’t this wasn’t a like we’re so excited to do this. They they thought we oh, my God, we’re losing viewers. We have to do it. And now what this does is it sets up incentives or disincentives, I should say, to say, okay, you thought that losing viewers to Newsmax was bad. How about if you tell a lie on camera a few times, you might have to pay $800 million dollars, which is more than you make in like seven months. The hope or the thing that we can hope for, because I don’t want to be too pessimistic about it, [laughter] is that Fox is still Fox. Fox is still going to Fox. 

 

Juanita Tolliver: Period. 

 

Max Fisher: It’s still going to be Tucker Carlson on air tomorrow and he’s still going to be him. But the executives behind the scenes are going to have to know in their back of their heads if we lie explicitly in a way that damages a company’s bottom line, we could have to pay way more than will be worth it. 

 

Juanita Tolliver: So the trial that wasn’t meant to be was still highly anticipated because I was ready to buckle up for the full six weeks. I know a lot of people were. We talked about how this settlement doesn’t match the sentiment of what people wanted, but it would have had significant implications on the First Amendment and the media landscape as a whole. So what kind of message does this settlement send when it comes to accountability and consequences for knowingly spreading disinformation? Because in my mind, a money payment is not accountability. We talked about just a little bit about the fact that, sure, they were losing some viewers and that motivated their lying. But for me, it’s like I think media outlets still have a cost benefit analysis to make. So now that Fox isn’t airing their dirty laundry, what do you make of this settlement? 

 

Max Fisher: So, I mean, I take your point, but the outcome of the case was always going to be financial damages, right? Like nobody was going to go to jail over their role in these Dominion lies. It was always just going to be a question of how much do they have to pay up. The thing that we lost in terms of accountability was the five or the six weeks of the trial of people having to go on the stand, of it being in the headlines, in the news. Of reminding people over and over again that Fox did this lying. I agree that we have lost out on that. But I think that we also got a pretty good share of what we would have gotten over all of that like public reckoning if the trial had gone forward. And also, this is not the last trial. Fox is facing a separate suit from Smartmatic for 2.6 billion over basically the same charge over basically the same lies. Now, I am sure that Fox will do everything in their power to settle that one, too. But, you know, maybe Smartmatic will see boy, Dominion did really well by at least pushing to discovery and by at least pushing up to the trial date. So maybe we can do well there, too. I don’t love that all of this is around like corporate financial incentives, but in this case, at least, like, maybe capitalism can work for us. 

 

Priyanka Aribindi: Hmm. What a what a thought. [laughter] What a thought there.

 

Max Fisher: You guys didn’t like that one huh? You guys don’t like that.

 

Juanita Tolliver: I’m just going pause, you know, I need to absorb that one. Okay Max.

 

Max Fisher: This take is a little too hot, huh? 

 

Priyanka Aribindi: Yeah. Yeah. You’re trying it out here, though and and we’ll let it marinate for a minute. But what happens now? You know, and what lies in the future of these defamation cases, including Dominion’s other lawsuits as well as you know, you hinted at the Smartmatic’s lawsuit against Fox as well. Do you think that will go in the same direction this has? 

 

Max Fisher: So the fact that the settlement was so big and the fact that the number was public, which is they’re not usually. Usually these numbers are secret and Dominion had to negotiate as part of the settlement, you have to let us reveal this number publicly. The fact that that is out there, I think, does shift the landscape not hugely, but a little bit in terms of media defamation and people’s expectations and lawyers expectations, frankly, for how possible is it to successfully sue a news agency for deliberately lying? How hard is it to prove it? And how hard is it to get a really big settlement? And I think that this will raise a lot of eyebrows for lawyers who are looking for big settlements. Maybe it will raise eyebrows for people who have been lied about by news agencies. My fear a little bit is that it’s possible that companies that want to preempt or squash legitimate news coverage might say, look at this Dominion case. They got $800 million dollars for proving actual malice. So, like, maybe you shouldn’t run your story about our shady dealings because maybe we can get that amount, too. So that is something that we are going to like learn over the coming years like has this changed the landscape? This story is still very much ongoing. 

 

Priyanka Aribindi: Max, thank you so much for joining us again, we’re so sad that we didn’t get to have six weeks of having you on, but hopefully for something else. [laughter]

 

Max Fisher: Thanks pals. 

 

Juanita Tolliver: That was our conversation with Crooked news contributor Max Fisher. And while this settlement left a lot to be desired for me at least, you better believe we will bring you all of the details about the other cases against Fox as they progress. That’s the latest for now. [music break]

 

Priyanka Aribindi: Let’s get to some headlines. 

 

[sung] Headlines. 

 

Priyanka Aribindi: Andrew Lester, the white homeowner who shot 16 year old Ralph Yarl last week in Kansas City, Missouri, turned himself in to authorities yesterday after being charged with first degree assault and armed action. As we talked about on the show yesterday, Yarl, a Black teenager, was shot twice by Lester after he mistakenly rang the wrong doorbell. He was hospitalized over the weekend with life threatening injuries and was released on Sunday. His mother, Cleo Nagbe, told CBS Mornings yesterday that her son is doing considerably well and he is quote, “able to communicate mostly when he feels like it. But mostly he just sits there and stares and the buckets of tears just roll down his eyes.” It’s heartbreaking. It really is to even think about. 

 

Juanita Tolliver: Beyond. 

 

Priyanka Aribindi: This young boy, it’s so it’s it’s sickening. 

 

Juanita Tolliver: And the fact that he’s going to live with these scars, not not just physically, but mentally and emotionally for the rest of his life, like his whole life trajectory has been changed as a result of this violence he faced for ringing the wrong doorbell but students from his high school, Staley High School, have his back. They walked out of school yesterday in support of their classmate. And I’m going to need more of that energy as we continue the debate about guns in this country. 

 

Priyanka Aribindi: Seriously. Lester is set to be arraigned this afternoon and if convicted, he could face life in prison. 

 

Juanita Tolliver: A Russian judge ruled yesterday that Wall Street Journal reporter Evan Gershkovich, must remain in pretrial detention, weakening hopes that he’ll be released any time soon. To get you up to speed, Gershkovich was arrested by Russian authorities while on a reporting trip late last month and was charged with espionage. His detainment marks the first time an American journalist has been imprisoned in Russia on allegations of spying since the Cold War. Gershkovich and The Wall Street Journal deny the allegations. And last week, the U.S. State Department officially designated Gershkovich as wrongfully detained. The U.S. ambassador to Russia, who was present during Gershkovich’s hearing yesterday, told reporters that Gershkovich is in good health and spirits behind bars. And she reiterated that the accusations against him are, quote, “baseless.” Gershkovich’s legal team says it will keep appealing this case until his next court date on May 29th, when Russian prosecutors will decide whether or not to extend his detention. Gershkovich currently faces up to 20 years in prison. My goodness. 

 

Priyanka Aribindi: Yeah. Seriously, how many times are they going to do this? Just like snap up these these innocent people. 

 

Juanita Tolliver: Right. 

 

Priyanka Aribindi: These innocent Americans, and imprison them and, like, ask for crazy shit in return? It is it’s very upsetting, very infuriating. Nebraska lawmakers yesterday passed the first bill in their 90 day legislative session. Typically, the one chamber legislature would have passed dozens of bills by now, but progressive lawmakers have been filibustering every single bill that has come before the body in an effort to block proposals that would ban gender affirming care for trans youth in the state. The movement started earlier in the session when Senator Machaela Cavanaugh vowed to filibuster every bill that comes to the floor for debate, even the ones that she likes and other lawmakers joined in shortly after. To get an idea of just how effective their strategy is, as of now there are over 200 bills that were proposed in this legislative session that haven’t even made it to their first round of debate. And with only 25 days left in the session, it’s not looking like they ever will. The lone bill that passed yesterday was a liquor taxation measure that had the support of every lawmaker in the legislature, including Cavanaugh. But Cavanaugh kept her promise and kept that bill from passing for nearly six weeks. 

 

Juanita Tolliver: Look, Machaela Cavanaugh is the only Cavanaugh I will ever celebrate. Shout out to you for fighting– 

 

Priyanka Aribindi: Fact. 

 

Juanita Tolliver: –for all of the people who need you. And finally, an environmental story that’s less doom and gloom and more smiling through the tears. Scientists have examined samples from the notorious great Pacific Garbage Patch, a massive floating swirl of accumulated trash that exists in the ocean between California and Hawaii and is reportedly twice the size of get this, Texas. Yikes. Their findings revealed that complex ecosystems of coastal creatures have begun to colonize and thrive at sea on top of the floating garbage thousands of miles from their coastal homes, legions of tiny crabs and sea anemones have hitched a ride on the 620,000 square mile trash accumulation. In a study published this week in the Nature Ecology and Evolution Journal. A team of researchers found that 46 different species have been able to survive and reproduce in these strange conditions, a majority of which has been traced to waste from commercial fishing. And while ideally there wouldn’t be a monstrous patch of plastic in our ocean, we’re happy that these little creatures are finding a weird new life out there. It’s a brave new world out in the middle of the ocean. 

 

Priyanka Aribindi: Truly one man’s trash is all of these little creatures’s I don’t know. Home? All they’ve ever known. And I I love that for them? I think. I still don’t think I like the idea of like a shit ton of plastic just like floating around there. Bigger than, like, I don’t know one of the largest states in our country. But yeah.

 

Juanita Tolliver: I’m having a dark thought moment, though. Is this our future? Like deadass when the land gets submerged in water like– 

 

Priyanka Aribindi: Do we float on trash [?]– 

 

Juanita Tolliver: –are we going to be living on plastic with the anemones? [laughter]

 

Priyanka Aribindi: I was going in another direction. I was going to say, like, in a sense, like, aren’t we all just like, living on um– 

 

Juanita Tolliver: Oh Priyanka! 

 

Priyanka Aribindi: –a raft of trash. But I feel like we’re like there is there’s some there is some connection between our thoughts. I like it. I think we’re both heading in the same direction. [laughing]

 

Juanita Tolliver: Dark. 

 

Priyanka Aribindi: And those are the headlines. We’ll be back after some ads. [music break]. 

 

[AD BREAK]

 

Priyanka Aribindi: It’s Wednesday, WAD squad. And for today’s temp check, we are talking about National Treasure Three Fence of Illusions. A security alarm was triggered on the North Lawn at the White House Tuesday after a toddler successfully breached the 13 foot retaining fence surrounding the property. The small child had apparently wriggled through one of the five and a half inch spaces between the posts. This baby’s day out came to an end shortly thereafter, When responding Secret Service officers reunited the child with his nearby parents, letting them go on with their day after a short interrogation that I can only imagine started with where the hell were you when your baby squeezed through this fence? This marks the first successful intrusion of the White House lawn since the government constructed a higher, more secure fence in 2021 following a series of security threats. Who knows what will happen after this? But Juanita, I have to ask you, was this an honest mistake by a, a young toddler? Or are highly trained baby spies looking to infiltrate the American government by any means necessary? What do we think? 

 

Juanita Tolliver: I promise you that baby knew exactly what they were doing. You’ve seen Boss Baby. 

 

Priyanka Aribindi: I’m with ya. 

 

Juanita Tolliver: You know what’s up. 

 

Priyanka Aribindi: I’m with you. I’m with you.

 

Juanita Tolliver: They are trying to go for global domination. So that’s my stance. But also, that kid was super cute, and I want more of this. I, this makes me feel good after a very shitty day of news. Priyanka, what do you think? 

 

Priyanka Aribindi: That’s true, this does make me feel good, even though the like the the parents absence during this is not is– 

 

Juanita Tolliver: Right. 

 

Priyanka Aribindi: –quite unsettling. But like, I’ve also been brainwashed by enough scandal to be like, is this some B613 shit? Like, is that what’s happening here? I don’t know. But, like, I just. If you’re Joe Biden, I’m I’m sleeping with one eye open tonight. I’m like, uh uh these babies not safe. [laughter] And just like that, we have checked our temps. It’s getting it’s getting up there a little bit. We’re we’re a little–

 

Juanita Tolliver: It’s spring time warm. 

 

Priyanka Aribindi: We’re getting nervous. 

 

Juanita Tolliver: It’s warm. [laughing]

 

[AD BREAK]

 

Priyanka Aribindi: That is all for today. If you like the show, make sure you subscribe. Leave a review. Colonize some sea garbage and tell your friends to listen. 

 

Juanita Tolliver: And if you’re into reading and not just the latest output from random celebrity couple generator like me, What A Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe. I’m Juanita Tolliver. 

 

Priyanka Aribindi: I’m Priyanka Aribindi. 

 

[spoken together] And let that baby into the oval office. 

 

Juanita Tolliver: You know, break some statues and shit. 

 

Priyanka Aribindi: You know Joe Biden would love that kid. Like Joe Biden. I’m sure heard of this. 

 

Juanita Tolliver: Absolutely. 

 

Priyanka Aribindi: And was like you didn’t send that kid straight to me? I don’t know. [music break]

 

Juanita Tolliver: What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Our producers are Itxy Quintanilla and Raven Yamamoto. Jocey Coffman is our head writer and our executive producer is Lita Martinez. Our theme music is by Colin Gilliard and Kashaka.