Vyskocil's opinion rejected the argument that this was defamatory because she accepted Fox's arguments about how viewers approached Carlson's program.
The “ 'general tenor’ of the show,” her opinion stated, “should … inform a viewer that [Carlson] is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘nonliteral commentary.’ … [G]iven Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’ about the statements he makes.”
That assertion about Carlson and his comments came at an interesting moment. On the same day, the White House press secretary tried to dismiss concern about a controversial comment from the president by disparaging the question that prompted the comment as coming from … a reporter for Playboy. More to the point, CNN released a report Thursday showing how some Trump supporters specifically failed to distinguish between satirical and actual political content on social media.
It's safe to say that this applies to Carlson's fulminations as well. His show on Thursday evening, for example, included plenty of the sort of “exaggeration” and “nonliteral commentary” that Fox News and Vyskocil are confident “any reasonable viewer” would treat with skepticism.
For example, Carlson began his program running through a number of exaggerated or misleading claims aimed at portraying the victims of recent police interventions as culpable in their own injuries or deaths. Later, he outlined a sweeping argument claiming that mail-in voting was rife with fraud, an objectively untrue assertion.
Among the viewers who declined to treat that exaggeration as nonliteral was a reasonable viewer who lives at 1600 Pennsylvania Avenue.
President Trump shared Carlson’s segment on mail ballots on Twitter, claiming, without any justification beyond Carlson’s misrepresentations, that “Democrats are Rigging our 2020 Election!” Twitter flagged the tweet with an alert prompting users to learn more about how “voting by mail is safe and secure,” but it’s likely that more people will see the video than Twitter’s asterisk given that Trump highlighted the tweet on his timeline.
Most of what Carlson delineated has been debunked already, so let's apply some literal, sincere commentary to his rant for the benefit of our reasonable readers.
Echoing press secretary Kayleigh McEnany, he highlighted a murky incident in Pennsylvania in which votes cast for Trump were discarded, apparently because of uncertainty over what the envelopes in which they were submitted contained. The incident is still under investigation — as an unusual Department of Justice news release indicated — but there’s no suggestion that this is part of some national effort by Democrats to “rig the election.” Particularly given that this occurred in a strongly pro-Trump area.
Again lifting up an accusation from McEnany, he talked about absentee ballots being found in a ditch in Wisconsin. There's nothing obviously election-related about that incident either, given that the ballots had not been completed and were among a bunch of mail that was discovered.
This is how the Trump-McEnany-Carlson playbook works: highlight sketchy incidents that involve mail-in ballots however tangentially and use them to assert that the system itself is problematic or tilted against the president. It’s the Russia investigation playbook. It’s the coronavirus playbook. It’s the same cherry-picking playbook, over and over.
Carlson continued, walking through other incidents in which fraud had been alleged (including Trump's favorite example in New Jersey), looping them in with disparagement of judicial or administrative decisions aimed at expanding the ability of voters to cast votes.
“There’s nothing partisan judges would like to destroy more in the end than a quick, efficient, fraud-free election night,” Carlson summarized. “That’s the goal here. Make no mistake. If all the votes are counted in one night, no one will have time to issue rulings to throw out ballots they don’t like.”
This is an incredibly weak argument, predicated on the primacy of “quickness” as a goal in vote-counting. Carlson's arguing that Democrats want time to challenge ballots, which is precisely backward: Trump (and presumably Carlson) want to suggest that votes counted after Election Day are questionable so that the president can have ballots which will almost certainly favor his opponent thrown out through legal maneuvering. That's why he and McEnany and Carlson are asserting that there's rampant fraud, so that Trump's supporters will view efforts to stop vote-counting as legitimate.
It’s critically important that Americans understand that this isn’t the case, that voting by mail — either through an automatic distribution of ballots or through a traditional absentee program — has not historically been subject to wide-scale fraud and is protected through a number of checks meant to prevent such fraud. We’ve been through this, but we should reiterate this point over and over: It’s safe and it’s proven — and efforts to introduce suspicion about the process are fundamentally efforts to suppress votes cast by mail which will probably weigh against Trump.
Vyskocil accepted Fox News’s claim that Carlson’s claims shouldn’t be treated literally, but obviously they are by many of his viewers, including Trump. Carlson’s “opinions,” particularly in this regard, are demonstrably false, but the network and the president ignore that fact.
Perhaps the most remarkable line from Vyskocil's decision, though, didn't involve Carlson at all.
“During the Government’s investigation of” the payments to McDougal, she wrote, "[Trump’s former attorney Michael] Cohen and [former AMI CEO David] Pecker both revealed that Mr. Trump had directed the AMI payment to Ms. McDougal in the first place, and then personally reimbursed the payments himself, all as part of an effort to avoid having the allegations affect the 2016 election.
That is flat-out illegal, a violation of federal election law. In a decision in which she shrugged at holding Carlson accountable for conveying information accurately, she asserted that the president four years ago engaged in an illegal scheme to bury information that might be of interest to the electorate. Vyskocil wasn't asked to evaluate how Carlson's rhetoric was used for political purposes, but it's impossible to ignore.
The result is that the institution which did the most to constrain Carlson's false, politically motivated assertions is not the judiciary, the White House or Carlson's employer.
It was Twitter.