As you’ve likely heard, Dominion v. Fox will not be going to trial. We recorded this episode on Tuesday morning, and then when the settlement came out, we recorded again — so this is some fresh, fresh content, looking at what forces would have driven the parties to get to ‘yes,’ and how the settlement came to be so large — likely the largest settlement ever paid in a defamation case in the US.
We also talk about what a great day this was for Dominion’s lawyers, and about the outlook for future litigation — Fox still faces a similar lawsuit from Smartmatic, while Dominion is still suing Newsmax, OANN, and individuals including Mike Lindell.
For paying subscribers, we have much more — updates on the Georgia investigation into Donald Trump and what to make of news reports implying an indictment could be imminent; more responses to listener questions about Alvin Bragg’s prosecution of Trump (including a particularly fun question from); and our responses to your questions about Afroman.
I had Afroman on my mind in part because I baked a lemon pound cake over the weekend — I don’t know if was as good as Afroman’s mama’s lemon pound cake but it was pretty delicious. That cake provided a good segue to discuss Afroman’s threat to countersue the Adams County Sheriff’s office and why he probably shouldn’t bother — it is really, really hard to sue over violations of your Fourth Amendment rights and win.
Finally, are you an intellectual property law expert? We have a question for you — listen to the full episode to find out what it is.
We hope you enjoy the show.
Postscript from Ken:
Greetings from occasionally sunny San Diego, where I am in trial. From a wide array of things I could have ranted about in this episode — but didn’t, because Josh and Sara don’t want me to become my best self — let me emphasize this one: The legal system isn’t your deus ex machina.
There are a lot of grave problems with America and they’re not going to be solved by lawsuits, even exciting ones. In the wake of the Dominion settlement, I’ve been seeing a lot of expressions of disappointment: that Fox wasn’t forced to apologize for its lies, that election fraud propaganda wasn’t officially proclaimed a lie, that Fox wasn’t forced to confront its dishonesty in court. Allow me, Kenny Raincloud, to dash your already-dashed hopes and dreams: You were never getting any of that. Judges and juries can’t force defamation defendants to apologize, let alone do so on TV. Verdicts in defamation cases do not operate as any sort of official legal pronouncements about what is true or false; they only show what a jury thought was proved by preponderance of the evidence (or clear and convincing evidence, for punitive damages) in this particular trial. At most, a plaintiff might be able to get a very narrow and specific injunction forbidding a particular defendant from repeating a particular thing the jury found was a lie. And though cross-examination may be, as Wigmore said, the greatest legal engine ever invented for discovery of truth, it is ill-suited to deliver the sort of visceral satisfaction or cultural vindication you may be looking for.
Lawyers and trials won’t fix what’s wrong with America. At best, they will compensate victims like Dominion for being wronged and deter other wrongdoers. Three quarters of a billion dollars is a lot of compensation and a lot of deterrence.
More on this next week.