$787.5 MILLION? YOU AIN'T SEEN NUTTIN YET!

Talk about inflation. 

In 1975, Brown and Williamson asked me to try a defamation case against CBS and its popular Chicago news anchor, Walter Jacobson. The first federal Chicago judge before whom we appeared dismissed our libel case because he said CBS was entitled to the protection of the First Amendment. The Circuit Court reversed and said a lie is a lie, the First Amendment notwithstanding. 

The trial lasted 3 weeks before a Chicago jury panel, and despite CBS's Chicago counsel's extraordinarily direct attack on our trial team because we were from New York City, (see below) the jurors awarded our client $5 million, the trial judge, for technical legal reasons, reduced the award to $2 million, and the Circuit Court raised it back to $3 million. The Supremes denied cert and CBS sent a check. 

We were celebrated at the bar because up to then, $3 million was the highest libel award ever affirmed by a federal court!

As you are undoubtedly aware, the lead story in yesterday's New York Times reported that Fox agreed to pay $787.5 million dollars to satisfy Dominion’s $1.6 billion claim that it was defamed by Fox’s libelous statements in support of Trump’s Big Lie. In addition to writing that humongous check, Fox was obliged to concede that “certain claims it made about Dominion were false!’’

Doncha love it?

Fox's defense had been that it was entitled to First Amendment protection because it was basically a neutral reporter of newsworthy events. The evidence unearthed in discovery revealed that assertion to be preposterous, but the clincher was a pre-trial sworn statement by Rupert Murdoch himself that some of Fox's program hosts had "endorsed" false statements made by Fox interviewees!

This was a humiliating defeat and Fox News handled the story just the way you would expect: while the  Times  put it in the top right-hand column of the front page, and other news channels gave it equally prominent billing, Fox News devoted approximately six minutes to report the matter and that was that.

But there is another case out there that may make the Dominion claim seem like something that should've been brought in Small Claims Court. A month ago the New York State Supreme Court Appellate Division, by a vote of 5-0, affirmed a judge's order denying Fox's motion to dismiss  Smartmatic's defamation claim seeking $2.7 billion for Fox's libels in support of Trump’s Big Lie. The Appellate Division affirmed a lower court decision that denied Fox's motion to dismiss a 300 page complaint that contained 18 causes of action setting out details of Fox's actual malice defamations. Some of them are extraordinary and by themselves make it plain that Fox was an irresponsible Trump functionary. 

For example, the complaint alleged that Fox reported that plaintiff’s vote-counting machines switched one million Trump votes to Biden in the battleground states of Pennsylvania and Michigan, and that Smartmatic machines were used to switch ballots in the key states of Nevada, Georgia, Arizona, and Wisconsin.

In fact, in the 2020 election, plaintiff’s machines were used only in a single county in California!

The complaint also makes much of Fox News' repetition of the conspiracy claim that the Smartmatic device was developed by the Communists who supported Hugo Chavez's election in Venezuela in 1998. In fact, the machine was developed by a Californian in the year 2000.

There was apparently no end to the total irresponsibility of Fox, all of which was made clear by some of the documents published in the Dominion discovery that established without doubt Fox knew it was telling lies but feared that if it told the truth a substantial part of its audience would go elsewhere because it wanted to hear only Trump lies, and would abandon any broadcaster who suggested that Biden actually won the 2020 election.

Fox's defense that it was simply abiding by its First Amendment rights was so absurd as to make it the equivalent of Clarence Thomas's defense of his failure to abide by a legal requirement that he report a $100,000 real estate transaction. His defense?  "Well, I didn't make a profit! on the deal!"

The Smartmatic case is pending in the State Court in Manhattan. It's hard to see a New York County jury being taken in by any more Fox lies. And again, Fox has Giuliani as a codefendant! Lots of luck with that, Rupert!

The Fox defeat was a refreshing ray of sunlight in this dreary political climate. But on the defamation issue at least, the forecast looks promising.

............

*As to the footnote above citing the argument by  CBS's prominent Chicago lawyer that his client ought to prevail because plaintiff was represented by New York counsel, I kid you not. Here is the quote from his jury summation castigating me for my cross-examination of the CBS employee who destroyed key documents:

“He (the witness) is up there being browbeaten by Mr. London. He has a lot of maneuvers he apparently learned in New York and he’s brought them out here to try them out in Chicago.” 

Lots more fun details in my published memoir, "The Client Decides”. Check it out.

A bientot.

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