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Opinion First Amendment bails out Tucker Carlson

Tucker Carlson, in a photo from 2017. (Richard Drew/AP)

A federal judge on Thursday tossed a defamation suit filed by former Playboy model Karen McDougal against Fox News over statements made by host Tucker Carlson on a December 2018 broadcast. “The Court concludes that the statements are rhetorical hyperbole and opinion commentary intended to frame a political debate, and, as such, are not actionable as defamation,” Judge Mary Kay Vyskocil noted in her ruling.

Fox News issued this statement: "Karen McDougal’s lawsuit attempted to silence spirited opinion commentary on matters of public concern. The court today held that the First Amendment plainly prohibits such efforts to stifle free speech. The decision is a victory not just for FOX News Media, but for all defenders of the First Amendment.”

In reaching her conclusion, Vyskocil credited an argument from Fox News attorneys that Carlson engages in “non-literal” commentary.

Or, in other words, nonsense. The broadcast in question was a classic Carlson production. It sought to portray President Trump as a victim of the scheme that he himself arranged with his then-lawyer Michael Cohen and American Media Inc. (AMI, parent company of the National Enquirer) to suppress media attention during the 2016 presidential race on his extramarital affairs. “Two women approach Donald Trump and threaten to ruin his career and humiliate his family if he doesn’t give them money,” argued Carlson, referring to Stephanie Clifford (a.k.a. Stormy Daniels) and McDougal. “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.”

As this blog explained in a June post, that’s not the way it went down. Instead, Cohen, Trump and AMI executive David Pecker had set up an early-warning system for hushing up folks like McDougal. She had taken none of the steps that Carlson had attributed to her.

A falsehood, however, doesn’t equate to a defamation claim. By virtue of her immersion in a public controversy, McDougal is a public figure. Under U.S. libel law, a successful case against such a person must meet a standard known as “actual malice,” showing that the damaging falsehood was published knowingly or with “reckless disregard” to its truth or falsity. Mustering the necessary proof is always tough because it requires burrowing into the defendant’s state of mind.

And Carlson’s mind is an inscrutable mess.

In her complaint, McDougal alleged that Carlson had a “close personal relationship” with Trump and therefore “entertained serious doubts as to the truth of his statements or made them with a high degree of awareness that they were false.” Also cited in the complaint are Trump’s various tweeted endorsements of Carlson’s work at Fox News.

You have to do better than that, Vyskocil ruled. “Ms. McDougal’s arguments rest only on speculative allegations of a personal friendship between Mr. Carlson and President Trump and a purported political agreement/alignment between them,” wrote the judge, who also quipped: “The Court is unaware of any law — and Plaintiff has not provided any — that establishes any number of social media posts by someone else as indicative of a close personal relationship sufficient to establish actual malice.”

Vyskocil’s discussion of actual malice includes a passage relating to journalistic corrections that will interest the profession’s nerds. It requires some explaining: McDougal sought to piggyback on a ruling of the Second Circuit Court of Appeals in the high-profile defamation case Palin v. New York Times, in which the former Republican vice-presidential nominee claims that the newspaper acted with actual malice in suggesting that her political action committee incited the murderous Arizona rampage of Jared Lee Loughner in 2011. Among the many moving parts of that case was a correction that the New York Times editorial board published to clear up its false claim about Palin. That correction, ruled the Second Circuit, did not “undermine” Palin’s plausible contention that the newspaper published its editorial with reckless disregard of the truth.

Applying that lesson to the McDougal case, Vyskocil wrote, “Fox News never issued a correction to the statements Mr. Carlson made on December 10, 2018. Thus, any bad intent that could be inferred in Palin from a decision to publish and (one day later) then to issue a correction cannot be analogized to this case.”

Why issue corrections?

Perhaps the most durable aspect of Thursday’s ruling relates to the feel of “Tucker Carlson Tonight.” Vyskocil cited case law noting that bandying about words like “extortion” and “blackmail” in figurative rhetoric in political debates is just fine. And she credited arguments advanced by Fox News counsel about how viewers process the show’s message. She wrote:

As Defendant notes, Mr. Carlson himself aims to “challenge[] political correctness and media bias.” Def. Br. at 14. This “general tenor” of the show should then inform a viewer that he is not “stating actual facts” about the topics he discusses and is instead engaging in “exaggeration” and “non-literal commentary.” Milkovich, 497 U.S. at 20-21; Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 128 (1st Cir. 1997)). Fox persuasively argues, see Def Br. at 13-15, that given Mr. Carlson’s reputation, any reasonable viewer “arrive[s] with an appropriate amount of skepticism” about the statements he makes.

Also from the judge: “Ms. McDougal has not offered a plausible interpretation that the statements Mr. Carlson made, when read in context, are statements of fact.” Which is to say, Carlson would be in big trouble if Trump, somehow, managed to deliver on his pledge to “open up” the country’s libel laws.

Putting aside matters of public policy, it’s clearly a time for a change in slogan for “Tucker Carlson Tonight.” When your own lawyers and a federal judge agree that your show is a bunch of hot air, after all, it’s time to take action. So: Instead of his show being "the sworn enemy of lying, pomposity, smugness and group think,” perhaps this catchy alternative would resonate: “The show that provides non-literal commentary, hyperbole and errant claims that could never be proven true or false in a court of law.”