FOX HAS PLENTY OF WAYS TO DIVIDE AMERICA THAT DON'T QUALIFY AS DEFAMATION

Many people were disappointed when Fox settled its lawsuit with Dominion, but even some who felt let down believe that the dollar cost of the settlement will change Fox's behavior. Here's a common reaction:

With another presidential election just one year away, the settlement leaves many observers wondering whether the financial pain is enough to change the way Fox or other news organizations will report on the race.

“There’s a pretty good chance that someone’s going to be claiming problems with the 2024 election, and I can’t imagine that Fox’s lawyers would be happy about the newsroom using the same kind of freewheeling coverage where they let anyone on the air to make wild claims,” [First Amendment scholar Jeff] Kosseff says.

That may be true, but it won't help us between now and late 2024 -- and, as I'll explain below, it might not help us then, either. The 2020 election really might have been a one-off. Fox's response to it wasn't typical of the way it usually operates.

Fox routinely distorts the truth, but mostly in ways that aren't actionable. Look at the way Fox demonizes Manhattan DA Alvin Bragg. Bragg did take money from a group affiliated with George Soros. He did say he wouldn't prosecute certain offenses, such as low-level marijuana misdemeanors. There have been increases in certain categories of crime while he's been DA, although they're a continuation of an uptick that began before he took office, and there have been declines recently.

If you ignore the nuances, you can spin all this into stories about rampant lawlessness caused by a radical-left DA acting as the puppet of an evil globalist billionaire who thinks America ought to let criminals run amok, and it never quite goes over the line into slander or defamation -- certainly not for public figures who need to prove actual malice in order to prevail in court.

In order to inflame its audience, Fox doesn't even need to say that there's something disturbing taking place, at least by our standards. Does it bother you that there are books written for young people that acknowledge the existence of homosexuality, and that they're in some libraries? It enrages the viewers of Fox. Does it bother you that some schoolbooks tell students that slavery was bad and racism persisted in America even after the slaves were freed? Fox viewers don't like that either. On these subjects and many others, Fox doesn't have to lie -- it just has to work the audience into a state of rage about the truth.

So Fox has plenty of tools in the toolbox -- it doesn't have to change its tone in order to avoid another big defamation suit.

But what happens in 2024?

I question the widespread assumption that we'll have a rerun of 2020, with Joe Biden winning the Electoral College as a result of victories in a few close states. No one wants to believe this, but the polls right now suggest a popular-vote win by Donald Trump -- and if you think it's way too early to be polling 2024, consider the fact that voters already have well-formed opinions about the two major-party candidates, and have had those opinions for quite a while. How likely are they to change their minds? We have to hope that Democrats will do a good job between now and Election Day linking Trump and his party to the war on abortion, rampant gun violence, and other GOP-linked pathologies. We have to hope that multiple indictments make swing voters reject a second Trump presidency. We have to hope the polls are undercounting young people. But for now, it's looking like a clean Trump win.

And even if 2020 happens again, and Trump voters are enraged again, remember that it's possible to say the election was fraudulent without saying that voting-machine companies altered the vote. Do you rememember Mollie Hemingway's book Rigged? Hemingway gave Republicans who didn't want to talk about ballot irregularities a fallback argument, one that was just as dishonest but didn't involve serious corporate defamation. Here's her take, as summarized in a favorable right-wing review of the book:

Hemingway provides a very good overview of the forces working against Donald Trump’s presidency and re-election: an unhinged Left, a seemingly interminable Russiagate investigation based largely on cooked information, a coronavirus pandemic, race riots welcomed (if not fomented) by Trump’s adversaries, a mainstream media that acted as an adjunct of the Democratic Party, social media curators who picked favorites and censored conservative opinions, biased debate organizers and moderators, a massive get-out-the-vote drive funded by Facebook CEO Mark Zuckerberg and aimed at Democratic voters, and an unprecedented legal push by Democrats and their allies to revise election rules radically in their own favor. Republicans, Hemingway argues, saw themselves as “victims of an election that was rigged from the day Trump won the presidential election in November 2016.”

They can do the same thing with the events leading up to 2024. They can say the legal actions against Trump constitute election rigging. (They're already saying that.) They can say that inadequate mainstream media coverage of Hunter Biden, or "crime in Democrat cities," or LGBT "grooming," altered the course of the election. Maybe the Wisconsin Supreme Court will throw out the state's gerrymander and new district lines will be in place for 2024. If that happens and Biden wins Wisconsin again, maybe they'll say the new lines were a sneaky way of diminishing GOP turnout statewide, even though that makes no sense. They have a lot of options.

Fox won't stop being Fox, because Fox doesn't need to put itself at legal risk to be Fox.