What price are US media outlets paying for spreading election lies?

As voting got underway for the 2024 US presidential election, the voting technology company Smartmatic and the conservative outlet Newsmax reached an agreement about election lies in the last one.

Smartmatic settled a separate defamation lawsuit with One America News Network (OANN), another far right network, earlier this year in a confidential settlement. Ruby Freeman and Shaye Moss, two Atlanta election workers who faced vicious harassment after various networks spread false claims about them, settled with OANN in 2022. Eric Coomer, a former Dominion employee, settled with Newsmax in 2021. Dominion, another voting equipment company, settled with Fox for $787.5m on the eve of trial.

Some of the settlements have come with on-air apologies and retractions. Others, including the agreement between Fox and Dominion, have not. In some cases, the terms of the agreements have not been disclosed at all, leaving the public in the dark about what price, if any, outlets are paying for spreading election lies.

Smartmatic and Dominion, as well as Freeman and Moss, all still have a number of libel suits pending against far right outlets and other Donald Trump allies. But just one of the defamation cases so far has reached the trial stage and the rest have ended in settlements. These agreements – which can lack disclosure or accountability – underscore how defamation law is limited in the sense of justice it can bring to the public for election misinformation.

Defamation law is an area of the legal system designed around specificity – it is structured to allow specific people to receive financial redress for a specific harm done to their reputation.

“It’s definitely more complicated than people think because libel law can only go at misinformation that damages a person’s reputation,” said Lyrissa Lidsky, a law professor at the University of Florida. “Most of the misinformation, especially in the election context, is not targeted at an individual in the way that these allegations were. And so defamation is not going to save us from election misinformation.”

RonNell Andersen Jones, a first amendment scholar at the University of Utah, said it wasn’t surprising that the vast majority of the cases had settled. There is an extraordinarily high bar for proving defamation against a media outlet in the United States.

“Trials are very expensive. Defamation juries are notoriously unpredictable beasts,” she said. “It’s unreasonable to expect that the shareholders or investors or owners, that the people at this company should have to take on the financial risk of moving forward with a trial that could come out [against them]. It’s unreasonable for them to have to bear that financial risk to more perfectly correct the broader public record. I was frankly surprised that Fox Dominion didn’t settle far before it did.”

Some of that calculus may be changing, at least for Smartmatic. Reid Hoffman, the LinkedIn co-founder, has reportedly made a multi-million dollar investment in the company’s defamation litigation, which includes a pending suit against Fox.

But in the context of election misinformation, which still continues to pollute American political discourse, a settlement can leave the impression that those who spread misinformation can get off the hook if they’re willing to pay.

Trials also have a unique status in the American psyche as the forum where truth gets established. And so for cases that revolve around spreading lies, a trial naturally would appear to be the antidote.

“When it comes to debunking misinformation, defamation trials can be incredibly powerful,” said Daniel Rauch, a law professor at the University of Maryland. “At their best, defamation verdicts are authoritative, fact-based statements that ordinary community members – whatever their backgrounds and politics – can all agree that a lie is a lie.”

“That’s a sign with real credibility, especially in a time where other ‘debunkers’ are so distrusted. And it’s a signal you can’t get from out-of-court settlement.”

Trials also offer the unique opportunity for the public to hear from witnesses responsible for alleged lies. In the Fox trial, the opportunity to hear under-oath testimony from people such as Tucker Carlson and Rupert Murdoch would have been an extraordinary moment to hear about the state of mind of people responsible for putting false information on the air.

“Particularly when we think about sticky, persistent lies that have been weaponized in ideological subsets of the population, out-of-the-horse’s-mouth-testimony has an authenticity that is harder to counter or might potentially move the needle on repairing the narrative in ways that kind of vague reports about an order by a judge might not,” Jones said.

The one defamation case that has gone to trial also has offered a strong illustration of the limits a trial can have in correcting the public record. A jury in Washington DC last year ordered Rudy Giuliani to pay Freeman and Moss more than $148m in damages for lying about them after the election.

Giuliani didn’t turn over evidence in the case, so the judge overseeing it ruled that what he said was false and by default. And he showed little remorse even during the case, standing on the courthouse steps and repeating lies about Freeman and Moss. He quickly declared bankruptcy and Freeman and Moss have been in court ever since trying to collect their judgment.

And even if the litigants are willing to to spare any cost and the cases do get through all of the hurdles that go to a trial, the trials themselves may not actually change anyone’s mind.

Lidsky cautioned against expecting too much from trials. She pointed to Trump’s refusal to accept the verdict in the E Jean Carroll case as an example of how a defamation trial might not actually change anyone’s mind.

“The public hasn’t, as a whole, hasn’t bought into the definitive declaration of truth,” she said. “There are, through motivated reasoning, people are going to continue to believe what they want to believe.”