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Sunday, October 04, 2020

Tucker Carlson: Not to be Treated as Making Factual Statements (in Former Model's Defamation Case)

In McDougal v. Fox News Network, 2020 WL 5731954 (Sept. 24, 2020), Fox News essentially argued that Tucker Carlson was not to be taken seriously, and a federal judge agreed. Here's the background to the court's dismissal in the defamation case brought by former actor-model Karen McDougal.

National Enquirer CEO David Pecker, on behalf of parent company American Media, Inc., purchased the rights to a story about an alleged 2006-2007 affair between former model and actress Karen McDougal and Donald Trump. Trump’s attorney Michael Cohen then purchased the rights from American Media, Inc. This purchase was allegedly a “catch and kill” operation—that is, the Enquirer’s parent company American Media, Inc. bought the rights to McDougal’s story to prevent her from revealing damaging information about Donald Trump. News of this catch and kill operation (and another similar one) came out in the 2018 investigation of Michael Cohen on charges of violation of campaign finance law. Cohen ultimately pleaded guilty.

In the meantime, Fox News host Tucker Carlson aired a segment on December 10, 2018, shortly before Michael Cohen’s sentencing, in which he described the conduct of Karen McDougal and the other woman who had accused Trump of infidelity as follows:  “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.”

The district court held that Carlson’s statements were non-actionable hyperbole that no reasonable viewer would treat as factual. The court reached this conclusion by analogizing the case to a series of prior decisions in which courts had treated similar statements as exaggerations for effect rather than accusations of crime, especially when the statements involved contested political disputes. The court also interpreted the “extortion” statement in the context of Carlson’s show, “Tucker Carlson Tonight.” The court noted that the stated purpose of the show is to “challenge[ ] political correctness and media bias,” and its “general tenor” tips viewers off that Carlson “is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.”  The court even suggested that the commentary could be viewed as “bloviating” and further noted Carlson’s disclaimer that he was assuming what Michael Cohen said was true “for the sake of argument,” which would put his listeners on notice that they were not dealing with “a sober factual report.” Finally, the court posits “this overheated rhetoric is precisely the kind of pitched commentary that one expects when tuning in to talk shows like Tucker Carlson Tonight, with pundits debating the latest political controversies.” The court therefore held that the statements were “not factual representations and, therefore, cannot give rise to a claim for defamation.”

As an alternate basis for dismissal, the court also held that McDougal, a public figure, had failed to plead Carlson made his statements with reckless disregard for their falsity (that is, with actual malice). Allegations that Carlson was personally and politically biased in favor of Trump—as allegedly evidenced by Trump’s “47 Tweets” in support of Carlson--were insufficient grounds from which to infer actual malice.

[For a somewhat similar case suggesting Rachel Maddow’s “colorful commentary” on a news story was not actionable as defamation based in part on the fact that reasonable viewers wouldexpect her to use subjective language that comports with her political opinions” Herring Networks, Inc. v. Maddow, 445 F. Supp.3d 1042 (S.D. Cal. 2020)]. [This last part was added after my original post: I found the Maddow case a few hours later while doing further research on recent defamation cases.--LL]

Posted by Lyrissa Lidsky on October 4, 2020 at 01:32 PM in First Amendment, Lyrissa Lidsky, Torts | Permalink

Comments

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Posted by: slot | Jun 20, 2021 4:14:11 AM


Interesting one. Many complications here. But one thing concerning the disclaimer, or stipulation, or "for the sake of argument":

It seems rather, that the stipulation, was made, for question of law, not for question of facts. So, yet, he did assert actual facts, only reserving sort of law analysis. I quote:

On one hand:

"Remember the facts of the story. These are undisputed"

But:

"Why is what Cohen is alleging a criminal offense?"

or:

"Now , more than two years later, Trump is a felon for doing this. It doesn't seem to make any sense"

More:

"But you might be wondering, how exactly is that criminal?"

So, it looks, as if, he wonders, how come all this things made by Trump and his lawyer, is criminal by nature, while ignoring the classic extortion, made by Karen MCdougal, clearly suggesting so, sort of double standard.

In sum, the judge has relied to more than some extent, on that stipulation, for suggesting rhetoric attitude, yet, reading the whole context indeed, suggests, that it was rather associated with law, over facts (criticizing by the way, prosecutors also).

Thanks

Posted by: El roam | Oct 4, 2020 3:26:21 PM

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