A federal judge on Thursday dismissed a defamation case against self-styled Fox News instigator Tucker Carlson. The case was brought by former Playboy model Karen McDougal, who alleged she had a 10-month affair with Donald Trump after meeting him in 2006 and subsequently sold her story a decade later to the National Enquirer. Though the tabloid never ran the story, it was later made public that the publication engaged in “catch and kill” to suppress a number of skeletons in Trump’s closet. When the story was revealed, McDougal alleged that Fox News host Tucker Carlson defamed her when discussing it on air in December 2018, telling his viewers that McDougal was soliciting a “ransom” in what “sounds like a classic case of extortion” of the now-president and that she “approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money.” McDougal said that Carlson and the network that airs him damaged her reputation by broadcasting those falsehoods and sought monetary damages.
Defamation suits are difficult to prove and prosecute, in part because broad swaths of speech, particularly speech that can claim to be political speech, have sweeping protections under the First Amendment. When the New York Times reported on the suit in December, Lyrissa Lidsky, an expert in defamation law and the dean of the University of Missouri School of Law, said “the case against Fox News could come down to whether a reasonable viewer would think Mr. Carlson was accusing Ms. McDougal of a crime.”
Do Fox News viewers think Tucker Carlson tells them the truth? Are they, in fact, reasonable? The federal judge, Mary Kay Vyskocil, who herself was appointed to the federal bench by Trump nine months ago, dismissed the case, citing Carlson’s First Amendment protections. That is, Vyskocil bought the argument Fox News was pushing that Carlson is, first and foremost, not a provider of “the news” as we know it, or “facts” as we commonly understand them, and his audience knows this. They’re apparently in on the gag. Fox News doesn’t label Carlson’s speech parody because that’s embarrassing for a company with the word news in its name to admit; it’s not factual journalism because that implies some responsibility for the credibility of the information that you spew. Instead, Fox News lawyers claim, Carlson is not “stating actual facts” but simply engaging in “non-literal commentary.” I couldn’t have described Carlson or Fox News better myself.
From Vyskocil’s opinion:
[In] the context of “Tucker Carlson Tonight,” the Court finds that Mr. Carlson’s invocation of “extortion” against Ms. McDougal is nonactionable hyperbole, intended to frame the debate in the guest commentator segment that followed Mr. Carlson’s soliloquy. As Defendant notes, Mr. Carlson himself aims to “challenge political correctness and media bias.” 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.” … Given Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’ …
In other words, “any reasonable viewer” doesn’t actually believe what Tucker Carlson is saying to be true. It is therefore unreasonable to take what Tucker Carlson says as truth. Good note, judge.
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