Editor’s Note: This story by Frances Mize was first published by the Valley News on April 20.
SOUTH ROYALTON — Vermont Law and Graduate School President Rodney Smolla was sitting in a board of trustees meeting on Tuesday when he found out he won his “own Super Bowl,” he said.
Three years ago, Smolla, an expert on defamation and libel law, was pulled on to Dominion Voting Systems’ legal team to craft a case against Fox News. The broadcast news channel had begun its assault on the company’s voting machines, airing programming that called into question the validity of the votes tallied by the machines in the 2020 presidential election.
This week, Fox settled with Dominion for $787.5 million, one of the largest settlements in a defamation case in U.S. history.
“I’ve been a scholar that has written about defamation law for 40 years,” Smolla said. “This was the most important case I’ve ever been involved in, not just for the monetary stakes but for the importance for the country in setting the record straight.”
In one of the first legal rebukes to conspiracies calling the 2020 presidential election fraudulent, the judge’s opinion, issued two weeks ago, emphasized that it was “CRYSTAL clear” that statements aired on Fox slandering Dominion’s machines were untrue.
The judge’s statement was “particularly meaningful” to Smolla, he said. He was one of three lawyers for Dominion in Wilmington, Del., a few weeks ago to argue the motion for summary judgment, prompting the opinion.
That Fox settled indicates that there was high chance that a jury would side with Dominion and that Dominion’s legal team had pulled together a compelling case to prove that Fox had acted with “actual malice,” a high bar in defamation law.
In 2022, Smolla came to what is now Vermont Law and Graduate School from a position as dean at the Delaware Law School that he had held since 2015. A First Amendment expert, he has testified before the Senate Judiciary Committee regarding journalistic freedom and, in 2002, argued before the U.S. Supreme Court that a Virginia state law against cross burning violated freedom of speech laws.
Smolla declined to comment on what he is to be paid for representing Dominion.
The settlement between Dominion and Fox is the largest publicly known media payout ever. It is four times more than the runner-up, a 2017 defamation suit against Disney.
Dominion initially requested $1.6 billion from Fox. That asking price is still short of the $2.7 billion asked of Fox in a similar lawsuit, yet to go to trial, filed against the media company by voting technology company Smartmatic.
Some press freedom advocates are concerned that the ruling in the case on the side of Dominion, and the subsequent cases, could unsettle the precedent-setting 1964 New York Times v. Sullivan case, which largely protects journalists from defamation prosecution. Smolla thinks the opposite is true.
“I believe that the win for Dominion will actually reinforce the longevity of the Sullivan decision,” he said.
“There had been growing concern — particularly from Supreme Court Justices (Neil) Gorsuch and (Clarence) Thomas — that Sullivan needs to be revisited because plaintiffs can never win. And the Dominion case says, yes, you can win.”
Fox had also made itself more vulnerable by “crossing the line that separates bona fide journalism from advocacy,” Smolla added.
“I want to be very clear that there’s nothing wrong with being a journalistic outlet that has a political viewpoint,” he said. “But when you start to skew facts in order to advance a political agenda, you surrender your integrity as a journalist.”
Fox acknowledged “the Court’s rulings finding certain claims about Dominion to be false,” in a statement released after the settlement.
“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,” the statement reads.
Some see Dominion’s willingness to settle as not taking a hard enough line against Fox. The voting machine company gets to cash in, and Fox is relieved of having to broadcast an apology and corrections to its viewers.
But the settlement is “a complete victory for Dominion, yes, but also for the public record, and for the idea of truth and accountability,” Smolla said. “$787.5 million is a lot of vindication.”
Frances Mize is a Report for America corps member. She can be reached at fmize@vnews.com or 603-727-3242.