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A judge uses Tucker Carlson’s own words against Fox News

But not like you might expect

Fox News host Tucker Carlson appears at a National Review Institute event in 2019. (Chip Somodevilla/Getty Images)
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It’s a pretty remarkable state of affairs when a judge is approvingly citing Tucker Carlson’s journalistic rigor, but that’s precisely the situation we find ourselves in now.

And rather ironically, that could be bad news for Fox News.

New York Supreme Court Judge David B. Cohen has now ruled that voting-machine company Smartmatic’s $2.7 billion defamation lawsuit against Fox News and Rudolph W. Giuliani can proceed. The case involved numerous false and baseless claims made on Fox about voter fraud involving the company’s voting machines.

In the ruling, the judge notably dropped Fox host Jeanine Pirro and former Trump lawyer Sidney Powell from the lawsuit — Pirro because her statements didn’t so directly accuse Smartmatic of illegality, and Powell because New York doesn’t have jurisdiction over her.

But the case against Fox, its other hosts and Giuliani can proceed. And in allowing it to, the judge previewed a tough road ahead for them in this monumental defamation case.

The ruling repeatedly says Fox hosts, Giuliani and Powell made claims “without any evidence” and “without any basis.” It also says that claims made by Giuliani, Fox host Maria Bartiromo and now-former Fox Business host Lou Dobbs could meet the legal standard of claims being “so inherently improbable that only a reckless person would have put [them] in circulation.”

“Even assuming that Fox News did not intentionally allow this false narrative to be broadcasted, there is a substantial basis for plaintiffs’ claim that, at a minimum, Fox News turned a blind eye to a litany of outrageous claims about plaintiffs, unprecedented in the history of American elections, so inherently improbable that it evinced a reckless disregard for the truth,” Cohen wrote.

At a rally on Oct. 9 in Des Moines, former president Donald Trump continued to unleash a litany of false and unproven claims of voter fraud in 2020. (Video: Adriana Usero/The Washington Post)

“While we are gratified that Judge Cohen dismissed Smartmatic’s claims against Jeanine Pirro at this early stage, we still plan to appeal the ruling immediately,” Fox News Media said in a statement. It called the lawsuit “baseless” and a “full-blown assault on the First Amendment which stands in stark contrast to the highest tradition of American journalism.”

But perhaps the ruling’s most biting — and also potentially legally important — section involves Carlson.

In the course of laying out the legal requirements for Smartmatic to prove its case, the judge noted that the company must prove Fox met the standard of acting with “actual malice” — i.e. not merely promoting false claims, but doing so either knowing they were false or with reckless disregard for whether they were false. And on that count, the judge says the best evidence that it did is Carlson.

That’s because Carlson, unlike the others, applied significant actual skepticism to the claims — and broadcast it.

It’s an episode many might have forgotten in the long and sordid run-up to the Jan. 6 insurrection on the U.S. Capitol. But there was a time in which none other than Carlson stepped forward to question the “stolen election” narrative that had taken hold in the Trump movement and in certain corners of his network. Carlson said on Nov. 19 that Powell’s claims were serious, but he also (rightfully) noted that she had yet to substantiate them. He said he had asked, over the course of a week, for the evidence and offered her his platform, but that she had declined.

Carlson said Powell “never demonstrated that a single actual vote was moved illegitimately by software from one candidate to another. Not one.” He said that when he invited her on his show, she became “angry and told us to stop contacting her.”

The episode alienated some Trump allies. But it also, in Cohen’s estimation, speaks to the possibility that Fox might meet the “actual malice” standard.

Here’s the section (with key parts bolded by us):

Ironically, the statements of Tucker Carlson, perhaps the most popular Fox News host, militate most strongly in favor of a possible finding that there is a substantial basis that Fox News acted with actual malice. As noted above, on November 19, 2020, Dobbs posted a video of he and Powell on Twitter with a caption stating, inter alia, that Powell “has no doubt that Dominion voting machines run [Smartmatic]’s software which allows [it] to manipulate the votes.” … The same day, Carlson wrote an article stating that, for over a week, Powell had been claiming that the election had been stolen and that, if Powell were correct, it would be the greatest crime in American history, and he thus asked her to substantiate her comments. However, Powell never provided the evidence requested by Carlson, and President Trump’s campaign advised Carlson that it knew of no such evidence. Therefore, there are sufficient allegations that Fox News knew, or should have known, that Powell’s claim was false, and purposefully ignored the efforts of its most prominent anchor to obtain substantiation of claims of wrongdoing by [Smartmatic].

This is not the only evidence the judge mentions as pointing to the possibility that Fox acted with actual malice. At another point, he noted that Fox didn’t share emails from Smartmatic seeking to correct claims that its machines were used in Los Angeles County with other hosts. The judge even speculates that “it is possible that it deliberately decided to prevent them from learning facts which could or would have confirmed the probable falsity of the statements broadcast on their shows.”

But it’s Carlson’s words that the judge says “militate most strongly in favor of a possible” actual-malice finding.

When the judge says this is ironic, it seems he’s referring to the fact that Carlson is the network’s most popular host. But it’s also ironic in that Carlson has hardly been a beacon of journalistic tenacity.

Either way, the fact that he seemed to see through the frivolity of Powell’s baseless voting-machine conspiracy theories — and broadcast that posture even as others promoted such claims far less skeptically — is now more than just a Fox-vs.-Fox-and-Trump-allies story; it appears to be a potential legal liability.

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