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Tucker Carlson Successfully Argues Nobody Really Believes Tucker Carlson Is Reporting Facts

WASHINGTON, DC - MARCH 29: Fox News host Tucker Carlson discusses 'Populism and the Right' during the National Review Institute's Ideas Summit at the Mandarin Oriental Hotel March 29, 2019 in Washington, DC. Carlson talked about a large variety of topics including dropping testosterone levels, increasing rates of suicide, unemployment, drug addiction and social hierarchy at the summit, which had the theme 'The Case for the American Experiment.'  (Photo by Chip Somodevilla/Getty Images)
By Joseph Fawbush, Esq. on September 30, 2020 1:38 PM

When Tucker Carlson says on his show “[r]emember the facts of the story; these are undisputed" no reasonable person would believe that he was about to state facts. At least, that was Tucker Carlson's own argument in defending himself from a libel suit.

That argument convinced U.S. District Judge Mary Kay Vyskocil, who dismissed a lawsuit brought by model and actress Karen McDougal. McDougal sued for defamation, alleging Carlson baselessly told his audience she was extorting the President. President Trump allegedly paid $150,000 to help keep quiet a year-long affair with the former Playboy model.

"Bloviating for the Audience"

Back in 2018, Tucker Carlson told his viewers that Karen McDougal's claim “sounds like a classic case of extortion." This was part of a broader discussion defending President Trump from accusations that he violated campaign finance laws in spending money to keep affairs with two women quiet. Michael Cohen was convicted on charges related to these events and is currently serving out the remainder of his term in home confinement.

According to Judge Vyskocil, “Fox persuasively argues . . . that given Mr. Carlson's reputation, any reasonable viewer arrives with an appropriate amount of skepticism about the statements he makes." She doesn't stop there, writing that “[w]hether 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."

Judge Vyskocil also pointed out that Carlson said “sounds like" prior to saying the word extortion, which “would put any reasonable viewer on notice that Carlson himself doubts the veracity of the source of these statements and that the listener should as well." President Trump appointed Judge Vyskocil to the bench in 2019.

No Actual Malice

Even if the statements had been actionable, Judge Vyskocil continued, McDougal's career made her a public figure (McDougal contested this designation). Since the comments were on a matter of public concern McDougal would have had to show Carlson acted with actual malice.

McDougal argued that as a prominent supporter of the President, Carlson ignored the truth to be able to take a position supporting the President, which constituted actual malice. This, however, was speculative and was not enough to overcome the high bar in defamation cases brought against public figures, Judge Vyskocil held.

Fox News issued a statement calling the decision a win for free speech. Bloviate away, Tucker Carlson.

Related Resources

Lawsuit Claims Professor Fired for Fighting With Tucker Carlson (FindLaw's Courtside)

Fox News Conspiracy Machine (FindLaw's U.S. Second Circuit)

Fox Settles Other Sexual Harassment Claims Against Ailes(FindLaw's Decided)

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