First Amendment Lawyer Floyd Abrams: Smartmatic’s $2.7 Billion Lawsuit is ‘Extremely Dangerous’ to Fox News

Fox News successfully avoided a trial in the defamation case brought against it by Dominion Voting Systems — all it took was a $787.5 million payout. But according to legendary First Amendment lawyer Floyd Abrams, the next defamation suit Fox faces from Smartmatic could be even more dangerous to the cable news giant.

I spoke with Abrams — a brilliant lawyer who successfully represented the New York Times in the Pentagon Papers case, and the father of Dan Abrams, the founder of this site — for this week’s episode of The Interview.

We discussed defamation law, the scene inside the Delaware courtroom where this case was settled on the first day of trial, whether Dominion should have pushed for a public apology, the trouble ahead for Fox News, and the future of the First Amendment.

Abrams said he was pleased this case didn’t go to trial and potentially test the First Amendment in appeals that could have reached the Supreme Court.

He said the Smartmatic suit, which is a similar case to Dominion’s, is “extremely dangerous” for Fox News.

And he said he expects heads to roll at the cable news giant over this massive settlement — because Fox Corporation chairman Rupert Murdoch “has to” show the Fox board that this kind of catastrophe will not happen again.

In a statement, Fox said: “We will be ready to defend this case surrounding extremely newsworthy events when it goes to trial, likely in 2025. As a report prepared by our financial expert shows, Smartmatic’s damages claims are implausible, disconnected from reality, and on its face intended to chill First Amendment freedoms.”

Read a transcript of our conversation below, edited for length and clarity.

What are your top line takeaways from this blockbuster settlement?

I think it’s a good thing the case was settled. I think it’s a good thing for the First Amendment that the case was settled. I would rather not have this be the case that the Supreme Court has in front of it come the day when critics of, opponents of, denigrators of New York Times v. Sullivan have their day in court.

There were a lot of concerns that a case like this going to trial would threaten the First Amendment and that we might have appeals that would go all the way up to the Supreme Court. That was something that you were worried about?

Yeah, I was worried that this was too exciting a case for the one that I would like to have in the Supreme Court. The reality is that most of the members of the court, maybe all of them, know already where they’re coming from about New York Times v. Sullivan, they’ve already had petitions on that and so far turned them down. We’ve had two justices, [Neil] Gorsuch and [Clarence] Thomas vote to hear a case. So it’s not that this issue hasn’t occurred to them, but I’d rather not have this be the case in which the court takes another look, if it does take another look, at the continued viability of the level of First Amendment protections afforded in the Sullivan case.

I’m assuming you’re saying that because Dominion had such a strong case against Fox News.

Well, I thought on that level that might have been a good case. Look, I’m in favor of libel law. There are some people on the left and not necessarily left politically, who really don’t like libel law at all. Justice [Hugo] Black, of the Supreme Court, said Congress may not abridge the freedom of the press. Therefore, libel law is unconstitutional. All of it, Justice Black thought. I think libel law serves a good purpose. I think this case was a textbook example of why it is necessary to provide libel remedies softened or ameliorated by First Amendment consideration. But nonetheless, a working, functioning libel law.

Knowing now what we do, do you think that Fox made the right move here in settling this case?

Sure. We don’t know what a jury would have done, but this was an extremely strong plaintiff’s case. It’s really rare that you have the level of falsehood and the ability to prove the falsity of what was said to the extent that occurred here.

I was in Delaware for this case. I was in the courtroom. Jury selection happened after the case got delayed by one day. On Tuesday, we had jury selection in the morning. Then there was a lunch recess and we were about to have opening arguments. Everyone piles into the courtroom. There were dozens and dozens of reporters present. Opening arguments are supposed to start at 1:30 p.m. It gets to 2:30 p.m., judge is still not there. It gets to 3:30 p.m., judge is still not there. At that point, reporters started getting a little frantic. I saw a couple that started typing up their settlement pre-writes, and then the judge walks into the room and says a settlement between the two parties has been reached. It was a wild scene. What I wanted to ask you is, when when I’m sitting in that courtroom blind, no idea what’s going on, what do you think is happening between the lawyers?

I think settlement arises necessarily always and then it’s quiet for a day or in this sort of case, a few months. It’s always in people’s minds that this was a rare case in which the plaintiff, Dominion, had a really strong case on almost every level. And it’s also an ironic case that New York Times v. Sullivan has been attacked from the right, really since it was issued, but certainly in recent years. And so that makes it all the more striking that in this case, where the the entity on the right is clutching onto the Sullivan case as if it’s their own child.

We actually spoke about this a couple of weeks ago because I was writing a story about Florida. Ron DeSantis expressed some support for new bills that would curtail press protections. The idea behind the piece was: if you curtail press protections, you’re going to hurt conservative media just as much as the mainstream media that someone like DeSantis kind of rails against. What do you make of those bills that are coming in Florida?

I think they’re dangerous. The idea, for example, of saying, as that bill does, that if a journalist cites to, and is relying on, a confidential source, that the presumption should be that there is no source, that the journalist is lying, is outrageous in its lack of fairness, but dangerous, in terms of its intrusion into the First Amendment.

Every news outlet uses anonymous sources, including Fox News, Newsmax, The Daily Wire, all these outlets that Ron DeSantis is very fond of.

I ask myself sometimes, would the American right do a deal where the deal is no press, no left, no right. They can write about anything except politics or anything of social interest of the public. Would any of them, any of the smart ones, think, ‘That’s a pretty good deal for our team’? But fortunately, it’s at odds with the First Amendment.

A lot of people are complaining that Dominion did not hold out for a groveling apology, a correction from Fox News hosts on air. Is that something that you think Dominion should have pushed for in this case?

I’ll bet they did push for it. Do I think that they should have rejected an otherwise acceptable settlement? No. I understand. I would very much like to hear Tucker Carlson speak about what Tucker Carlson had to say on the record and off in this case. But I think that this was a good settlement for both sides. I’m glad the case was brought. And if anything, I think it helped to serve First Amendment interests for the most part. It’s well behind us. Of course, it would be not only better, but fairer if Fox would come forward and confess and say, “We said this, it wasn’t true, we’re sorry.” People do that sometimes in libel cases, both because they have to to settle in some circumstances. I think the public would have been greatly served if if Fox had acknowledged the reality of their misconduct. But I think it’s still a good settlement for the public to put this case behind them and behind us, especially because there are other cases that are yet to come in which Fox is going to have to deal with the same sort of issue.

My instinct has been to defend Dominion against those kind of complaints, because in addition to getting this massive settlement, they got that extra layer of accountability because they got all this evidence out in this case. So we know that Fox News aired these false claims despite admitting privately that they were false. We got that. And I’m not sure how much more we would have gotten out of a trial.

Would have gotten the pleasure of seeing Rupert Murdoch… But I don’t think it would have changed anyone’s mind. I really don’t. Do I think it would have been more just looking at it as “What is justice?” Yes, I prefer if Fox would tell us the truth. I don’t blame the law or the case for not wiring them to do so.

I want to read you Fox’s statement about this settlement and get your reaction to it. They said:

“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. This settlement reflects FOX’s continued commitment to the highest journalistic standards. We are hopeful that our decision to resolve this dispute with Dominion amicably, instead of the acrimony of a divisive trial, allows the country to move forward from these issues.”

What do you make of that?

Well, the third sentence is like a grapefruit in the face. The notion that at this moment, after all that we’ve learned, even just take the one finding of the judge that it’s “crystal clear” that none of the charges against Dominion were true, none of them, not even a bit of apology for that? Instead of this, not just carefully phrased, but painful to read language of Fox. Look, I’ve settled cases, and when you deal with the government, for example, one thing that they always say is we won’t show you our press release. That’s off the table. Whatever the deal is otherwise, you will have no say and no look at it even. So the Fox statement is memorable because it is in part a joke.

When I was at the trial and we walked out after the judge announced that it had settled, we went to the press conference from the Dominion lawyers and they get up there and they immediately cite the dollar figure of the settlement, $787.5 million. And then John Poulos, the CEO of Dominion, said ‘Fox News has admitted that they lied’ and all the reporters were like, ‘Wow, what a big concession’. And then everyone gets the Fox News statement on their cell phones. And we’re reading it like, wait, they didn’t admit that they lied at all. They didn’t even admit that they aired false statements. They said, ‘We acknowledge the court’s rulings finding certain claims about Dominion to be false.’ It’s a Donald Rumsfeldian, mistakes were made, statement.

Well said. It is that. And not even mistakes by us were made, not any mistake is acknowledged in that glorious use of the passive tense.

When we take a broad look at this case, it’s pretty astounding and probably a good thing that we now know that there is a hefty price tag for the media promoting Trump’s claims about the 2020 election, which I think are even more dangerous than people understand, given polling finds that a majority of Republicans still believe the 2020 election was not fair. My fear is that this won’t serve as much of a deterrent to Fox News. Do you foresee this changing the way that Fox News covers Trump?

They can’t want this to happen again. This is not, by any definition, a triumph for Fox News. Do they need to and will they continue to take pro-Trump positions, very strong denunciations of opponents and all that? Sure. I think it’s more likely than not that they’re going to have to clear more with lawyers before they say it, and that they’re going to have to avoid the strongest, most off the wall and least defensible statements about people of whom they and their audience disapproves.

Tucker Carlson is still on air saying things like, there’s no way that senile Joe Biden could have gotten more votes than the President Obama. As long as they’re not defaming a company, they can say this stuff with impunity. 

I mean, they do run the risk that public interest firms more left than not in inclination will be prepared to take them on for a falsely accused person. That could happen. They have a difficult road here. I mean, we saw in the evidence that came out here how concerned they were about losing their viewers to Newsmax. Nothing has changed about that. Now, I don’t know how they’re going to walk their news beat in a way that still lets them be as harsh, vigorous, loud and denouncing of Biden. But other people around Hunter Biden, I mean, are they going to think twice not about dennouncing him, not talking about investigations, but have a lawyer who is going to have to check what they write and say to a greater degree than has occurred before.

Looking forward to 2024, if Donald Trump doesn’t win re-election, he’s going to claim that election was rigged. How Fox News covers that is going to be fascinating to watch. There are whispers that we’ll see shareholder lawsuits in addition to these defamation cases. Do you expect any heads to roll at Fox News as a result, whether it’s Fox News CEO Suzanne Scott or hosts like Maria Bartiromo, Tucker Carlson or Jeanine Pirro?

My guess is yes. I think Mr. Murdoch has to do it. Not saying he doesn’t want to do it. I’m just saying I think he has to demonstrate to his board — Paul Ryan and other people who are not as very far right as Fox News is — that they’re taking greater steps to avoid liability. One thing I’m confident of is that Fox doesn’t want another lawsuit like these.

Fox is facing that other defamation lawsuit from Smartmatic, it’s a very similar suit, they’re seeking $2.7 billion. What does this Dominion settlement, in your eyes, mean for the Smartmatic suit?

Smartmatic comes into this case a lot better off than was the case with Dominion. They have all the information that was made public from the Dominion case. And they are also are in an even better position on a practical level.

Download the full episode here, and subscribe to The Interview on Apple Podcasts or Spotify.

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