On his highly rated prime-time program, Fox News host Tucker Carlson commonly faults others for not properly loving America — for not sufficiently adoring its freedoms, opportunities and promise. He even goes as far as to say that Democrats “hate” the place.

Among the reasons Carlson should indeed appreciate this country: His brand of tendentious broadcasting enjoys generous protection under the First Amendment. A case now making its way through federal courts, though, may test that proposition.

In a complaint filed in December, former Playboy model Karen McDougal sued Fox News over a “Tucker Carlson Tonight” segment in which the host accused her of “extortion” in her dealings with Donald Trump. “Two women approach Donald Trump and threaten to ruin his career and humiliate his family if he doesn’t give them money,” argued Carlson in a December 2018 segment. “Now that sounds like a classic case of extortion. Yet for whatever reason, Trump caves to it, and he directs Michael Cohen to pay the ransom. Now, more than two years later, Trump is a felon for doing this. It doesn’t seem to make any sense.”

One of the reasons that the sequence outlined by Carlson doesn’t make any sense is that it’s false. Those “two women” are Stephanie Clifford (a.k.a. Stormy Daniels) and McDougal, both of whom received hush money for keeping quiet about alleged affairs with Trump. In McDougal’s case, she didn’t “approach Donald Trump”; through an attorney, she approached American Media Inc., whose holdings included the National Enquirer; AMI paid McDougal $150,000 for the rights to the story as well as columns on fitness. Then the company essentially buried the story. Trump and his then-attorney, Michael Cohen, were coordinating the whole “catch and kill” operation with AMI executive David Pecker.

In her lawsuit, McDougal alleged that Carlson’s representations were “intentionally false and made with reckless disregard for the truth.” Those words are deliberate: Under First Amendment law, there’s a high bar for defaming a public figure such as McDougal. The “actual malice” standard requires proof that the offending, false statement was made knowingly or with “reckless disregard" for the truth.

Lawyers for Fox News argue that the suit fails on at least two levels. For one, they point to the heavy requirements to prove “reckless disregard” under First Amendment law. That very issue lies at the center of a defamation case filed by former vice-presidential candidate Sarah Palin against the New York Times in 2017, over an editorial alleging that her political action committee had somehow incited the murderous rampage of Jared Lee Loughner in 2011. It wasn’t true. To prove, however, that the editorial page acted with reckless disregard, Palin would have to show "more than a departure from reasonably prudent conduct,” according to an opinion from Justice John Paul Stevens in the 1989 Supreme Court case Harte-Hanks Communications v. Connaughton. "There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.”

Serious doubts? Tucker Carlson doesn’t do serious doubts.

In last week’s oral argument, federal Judge Mary Kay Vyskocil pushed attorney Eric Bernstein, representing McDougal, to cite facts proving that Carlson had acted with actual malice. “I believe that the facts supporting that he was reckless is that he — first of all, Fox has reported on this story before and no one has ever said any of the things that he was saying that night, which is that my client approached and threatened [Trump],” said Bernstein, who later said Carlson had concocted the tale out of “thin air.” Yet the judge continued to press: “Don’t you need to allege facts to support it? It’s not enough to just recite the standard under the case law,” said Vyskocil.

Another argument from Fox News in the McDougal case is a staple of defamation defense — namely, that Carlson was disseminating opinions about the news, a well-shielded activity under the First Amendment. These were "statements of opinion relating to matters of public concern that do not contain provably false factual assertions,” according to the Fox News motion to dismiss. The effort in the McDougal complaint to “characterize Carlson’s hyperbolic opinion commentary as sober factual reporting” is “unsuccessful,” notes the Fox News argument.

And remember the platform, too. “It’s certainly relevant that what we’re talking about here — it’s not the front page of the New York Times, it’s not the breaking news segment on the nightly news, it’s ‘Tucker Carlson Tonight,’ which is a commentary show,” said Erin Murphy, an attorney with Kirkland & Ellis representing Fox News in a recent oral argument in the case. McDougal’s complaint, argued Murphy, didn’t identify any statements that “a reasonable viewer would understand in this context to state something provably false.”

Clay Calvert, a University of Florida professor steeped in media law, tells the Erik Wemple Blog that there’s “more than a small dose of irony in arguing in your defense that what you are stating on a news network is not factual.” That said, Calvert notes that a talk show brimming with “hyperbole, bombast and bluster is less likely to be considered a setting of factual allegations than a newscast.​”

Yet even “commentary shows” have to proceed from a factual predicate. In diving into the McDougal situation, Carlson sketched out an almost incomprehensible introduction. He referenced the role of Cohen, the president’s former fixer/attorney, in arranging for the hush-money payments, and alluded to the troubles facing Trump:

Paying these two women, say federal prosecutors and their flacks at NBC News, was a serious crime, a crime worthy of impeachment, if not, indictment. OK. But you might be wondering, how exactly is that criminal? Well, we're going to explain it to you.
We're going to start by stipulating that everything Michael Cohen has told the feds is absolutely true. Now, assuming honesty isn't usually a wise idea with Michael Cohen, but for the sake of argument, let's do it in this case, everything he says is true, why is what Cohen is alleging a criminal offense?
Remember the facts of the story. These are undisputed. Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. Now, that sounds like a classic case of extortion.
Yet, for whatever reason, Trump caves to it, and he directs Michael Cohen to pay the ransom. Now, more than two years later, Trump is a felon for doing this. It doesn’t seem to make any sense.

Boldface added to highlight a signpost from Carlson himself: Here are some facts!

But in arguments before Vyskocil, Murphy seized upon the material just before that signpost, where Carlson notes that he’ll assume Cohen’s statements are true for the sake of argument. “I don’t think that a reasonable viewer could understand Mr. Carlson to be saying these are actually undisputed facts that I’m reporting to you, because he has just informed his viewers these are not undisputed facts, I do actually dispute them.”

Over the balance of the segment, Carlson mounted his argument that McDougal’s actions equated to extortion. Chatting with radio host Chris Hahn, Carlson argued, “So, Chris, I think you don’t like Trump but that’s fine. But speak slowly so I can understand. Explain to me why paying off someone who is extorting you, threatening to make public details of your personal life, if she doesn’t get paid, why paying that person is a felony?” He returned to the extortion theme again and again, as if Trump were the victim in all of this.

Timing is an important consideration in understanding why Carlson was talking about extortion on Dec. 10, 2018, according to the complaint. In the news cycle preceding the “Tucker Carlson Tonight” segment in question, there was discussion that steering money to McDougal could filter into an impeachment proceeding because of the campaign-finance violations at stake. “Later that night,” reads the complaint, “Tucker dedicated 15 minutes out of a 41 minute program to address these payments calling them extortion (13 times) to cover for Trump and lie to the public.”

Fox News argues that “extortion” is a term that gets bandied about in loose and figurative ways, such that it doesn’t necessarily connote the criminality claimed by McDougal. "Accusations of extortion are a familiar rhetorical device,” notes the network’s motion to dismiss, quoting a previous case on the topic.

Okay, but “extortion” is only half of the problem here. Sample, again, what Carlson alleged McDougal to have done: “Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money.” That’s not just rhetoric; that’s a description of criminal activity. And that’s the line that packs the defamatory sting.

Now compare that version of events to what actually happened, as reported by the Wall Street Journal, the Times, the New Yorker and McDougal’s own lawsuit against AMI. During the 2016 presidential campaign, a friend of McDougal’s began posting about her long-ago affair with Trump — which he has denied — on social media. “I didn’t want someone else telling stories and getting all the details wrong,” McDougal told the New Yorker. McDougal eventually made contact with a Beverly Hills entertainment lawyer who said that the story would be worth “millions." The lawyer, Keith Davidson, secured interest from AMI and negotiations took place in summer 2016, heating up after Trump secured the Republican presidential nomination. On Aug. 5, 2016, McDougal sold her story for $150,000, as well as the rights to columns on fitness and health.

Regrets ensued. McDougal, according to the Times, became frustrated that AMI was dragging its feet in living up to the contract. As news outlets reported more and more revelations about Cohen, McDougal learned how her dealings fit into an arrangement between AMI and Trump world. According to a Justice Department document, AMI Chairman David Pecker — a good friend of Trump’s — offered in August 2015 to “help deal with negative stories about [Trump’s] relationships with women by, among other things, assisting the campaign in identifying such stories so they could be purchased and their publication avoided.” It all amounted to bad-publicity early-warning system.

The point being, McDougal was the one being used and manipulated — not Trump.

By time time Carlson leveled the extortion allegation in December 2018, the outlines of the story were settled. Not only were there multiple media reports on the machinations behind McDougal’s contract with AMI, but there was also a federal “criminal information” document against Cohen, which surfaced in August 2018 and spelled out the same scenario.

So where did Carlson fetch the whole extortion idea? We’ve asked Fox News for comment on that matter and will update with any response. Michael Rothfeld, who reported on these events for the Wall Street Journal (and later moved to the New York Times), tells us via email: “Based on my reporting with Joe Palazzolo...neither Karen McDougal or Stormy Daniels approached Trump or his people directly and threatened to destroy his career and embarrass his family to get paid.” Palazzolo and Rothfeld are authors of the recent book “The Fixers: The Bottom-Feeders, Crooked Lawyers, Gossipmongers, and Porn Stars Who Created the 45th President."

What’s “undisputed” is that Carlson perpetrated a damaging falsehood in claiming that McDougal had extorted Trump. Less clear is whether her lawyer can establish “reckless disregard.” Here at the Erik Wemple Blog, we have no trouble documenting simple recklessness in Carlson’s various pronouncements. We’ll never forget, for instance, the time that he made up an incriminating detail in a Maryland rape case against two undocumented immigrants; or the time he botched key facts in pursuing a white-grievance story line about farmers in South Africa; or the time he told an interviewer that protesters had damaged the front door of his D.C. residence (it looked fine); or the time he blamed immigrants for littering along the Potomac (pants on fire, says PolitiFact); or the time he claimed that our leaders have never explained why “diversity is our greatest strength” (they have); or the time he mischaracterized the comments of Anthony Fauci regarding the reopening of schools.

Factually unstable statements made with glib confidence gird Carlson’s commentary, a pattern that his bosses apparently care not to curtail. It’s inevitable, then, that the problem would spill into the courtroom, where profits from Fox News’s popular programming can pay for the very best legal representation.

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