Fox News host Tucker Carlson "is not 'stating actual facts' about the topics he discusses and is instead engaging in 'exaggeration' and 'non-literal commentary,'" wrote U.S. District Judge Mary Kay Vyskocil. Chip Somodevilla/Getty Images
Tucker Carlson appears to be made of Teflon. The Fox News Channel's top-rated host has been repeatedly accused of anti-immigrant and racist comments, which has cost his political opinion show many of its major advertisers. Yet Carlson endures in his prime-time slot.
Carlson even attacked his own network's chief news anchor on the air, with no real consequences. That anchor, Shepard Smith, quit mid-contract shortly after Carlson went after him.
Now comes the claim that you can't expect to literally believe the words that come out of Tucker Carlson's mouth. And that assertion is not coming from Carlson's critics. It's being made by a federal judge in the Southern District of New York and by Fox News's own lawyers in defending Carlson against accusations of slander. It worked, by the way.
Just read U.S. District Judge Mary Kay Vyskocil's opinion, leaning heavily on the arguments of Fox's lawyers: The "'general tenor' of the show should then inform a viewer that [Carlson] is not 'stating actual facts' about the topics he discusses and is instead engaging in 'exaggeration' and 'non-literal commentary.'"
She wrote: "Fox persuasively argues, that given Mr. Carlson's reputation, any reasonable viewer 'arrive[s] with an appropriate amount of skepticism' about the statement he makes."
Vyskocil, an appointee of President Trump, added, "Whether the Court frames Mr. Carlson's statements as 'exaggeration,' 'non-literal commentary,' or simply bloviating for his audience, the conclusion remains the same - the statements are not actionable."
Vyskocil's ruling last week, dismissing a slander lawsuit filed against Carlson, was a win for Fox, First Amendment principles, and the media more generally, as Fox News itself maintains. As a legal matter, the judge ruled that Karen McDougal, the woman suing Carlson, failed to surmount the challenge.
But in the process of saving the Fox star, the network's attorneys raised the journalistic question: Just what level of fact-checking does Fox News expect, or subject its opinion shows to?
Media lawyers note this is not the first time this sort of defense has been offered. A $10 million libel lawsuit filed by the owners of One American News Network (OAN) against MSNBC's top star, Rachel Maddow, was dismissed in May when the judge ruled she had stretched the established facts allowably: "The context of Maddow's statement shows reasonable viewers would consider the contested statement to be opinion."
In the Fox case, Carlson was presenting his own narrative, not even one extrapolating from known facts.
During the 2016 presidential campaign, McDougal, a former Playboy model, had sought to tell her account of an earlier affair with President Trump. The National Enquirer tabloid bought McDougal's story for $150,000 during the 2016 campaign and then buried it, to protect Trump from any fallout.
More than two years later, in December 2018, Carlson began presenting Trump as the victim of extortion. Seeking to discredit former Trump attorney Michael Cohen's tale of hush payments - and alleged campaign finance law violations - Carlson first told viewers, "Remember the facts of the story. These are undisputed."
But they aren't undisputed. They're not even facts.
He then proceeded to say, "Two women approach Donald Trump and threaten to ruin his career and humiliate his family if he doesn't give them money. Now that sounds like a classic case of extortion."
Pictures of former adult-film star Stephanie Clifford, known as Stormy Daniels, and McDougal flashed on screen. Cohen paid Daniels $130,000 on behalf of Trump, who denies that either affair occurred.
In reality, McDougal never approached Trump. She and her representative had spoken to ABC News and to the National Enquirer because, she said, she feared word of the affair would leak out during the campaign anyway and she preferred to be the one to tell the story. It wasn't publicly known that David Pecker, then the CEO of the tabloid's parent company, had promised Trump he would help keep stories about extramarital affairs from seeing the light of day.
Carlson and Fox never corrected that significant error, as the Washington Post's Erik Wemple underscored.
Not to worry, Carlson's lawyers said. In written briefs, they cited previous rulings to argue Carlson's words were "loose, figurative or hyperbolic." They took note of a non-journalist's use of the word "extort," which proved non-defamatory because it was mere "rhetorical hyperbole, a vigorous epithet."
Carlson has been accused of hyperbolic, vicious and unfounded claims about women, people of color and immigrants in the past. This year, his audiences have made his show the top-rated program in the history of cable news. He maintains the backing of Fox Corp. Executive Chairman and CEO Lachlan Murdoch.
The Daily Beast reported Tuesday that Fox recently slashed its research team, cutting it by about one-fourth during modest network-wide layoffs. Fox News says that is overstating the size of the cut to the unit. It says it eliminated duplication and those functions are conducted elsewhere throughout its newsroom and programs.
In Carlson's defense, Fox's attorneys, from Kirkland & Ellis LLP and Hunton Andrews Kurth LLP, noted that meeting the standard of "actual malice" requires more than just showing someone should have researched or investigated a subject before popping off, thanks to U.S. Supreme Court rulings.
The Fox team's legal briefs compared Carlson's show to radio talk-show programs hosted by ex-MSNBC and Fox Business star Don Imus, who won a case more than two decades ago because an appellate court ruled: "the complained of statements would not have been taken by reasonable listeners as factual pronouncements but simply as instances in which the defendant radio hosts had expressed their views over the air in the crude and hyperbolic manner that has, over the years, become their verbal stock in trade."
In sum, the Fox News lawyers mocked the legal case made by McDougal's legal team. She alleged "a reasonable viewer of ordinary intelligence listening or watching the show... would conclude that [she] is a criminal who extorted Trump for money" and that "the statements about [her] were fact."
"Context makes plain," Fox's lawyers wrote, "that the reasonable viewer would do no such thing."
The judge fully agreed.
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