Fox News Defends Lawsuit By Saying its Show Is not News
Tucker Carlson is having a rough go of things lately. Numerous advertisers have backed away from his program due to some of the more controversial stances that he has taken. Now, he is the defendant in one of the more interesting recent lawsuits to have been filed. Without getting into any political specifics, we will detail this unusual lawsuit. If the case reaches a decision, it will certainly shed some light on the libel laws. At issue in the case is whether Carlson's show would be considered news itself or a commentary on the news.
Carlson Made Statements about Two Women Involved with the President
The specific allegations revolve around the way that Carlson spoke on-air about a case involving Karen McDougall. She was a former model who sold her story of an affair with President Trump to the National Enquirer. The tabloid then proceeded to bury the story in what is known as a "catch-and-kill." The owner of the National Enquirer has a longstanding relationship with President Trump and had favored him over Hillary Clinton in the 2016 campaign.
The lawsuit stems from statements that Carlson made on his show about McDougall and Stormy Daniels. Carlson accused both women of scheming to ruin the President's career unless he paid them. Carlson said that it sounded like "classic extortion." The problem for Carlson is that extortion is a crime. According to McDougall, when he made that statement on his show, he accused her of criminal activity. This is why McDougall is now suing him for slander.
Where the case gets interesting is in Carlson's defense to the lawsuit. He characterizes his show in a manner that would keep him from having to investigate the veracity of any statement that he makes.
McDougall's lawsuit is judged by a different standard than other lawsuits because she is a public figure. As a result, Carlson's attorneys are that there is a higher standard required to prove slander. McDougall would need to show that Carlson acted with actual malice. When Carlson discussed this on his show, he gave the impression that he was recapping an actual news story in the New York Times.
Fox Says that Carlson's Show Is not Meant to Be News
Fox News has tried to get the lawsuit's allegations dismissed. The network's lawyers take a very interesting position in trying to get the judge to dismiss the claims. Fox News says that Carlson's show is not a news show and should be viewed as one by viewers. Instead, the network says that the basis of the show is for Carlson to take provocative positions as opposed to being a source of news. The motion for dismissal argues that the point of Carlson's show is to "make viewers think harder" as opposed to presenting them with the news.
The reason why viewers' perceptions are an issue is that New York State law hinges on what a reasonable viewer would have thought. In order to prove slander, a reasonable viewer would have needed to have thought that Carlson was accusing McDougall of a crime. This is where Carlson's lawyers get creative in their defense.
Fox claims that Carlson presented his allegations about the two women as a series of hypotheticals that were intended to get the viewers thinking as opposed to actually accusing them of criminal activity. The network's attorney argues that no "reasonable viewer" would think that Carlson was actually presenting news.
When the motion was argued in court, the judge asked Fox's lawyers whether Carlson had a duty to investigate his claims before he made them on his show. The lawyers responded that he did not. Given the premise of his show and that McDougall is a public figure, Carlson has nearly carte blanche to say what he wants short of a specific intent to harm McDougall. In addition, the network's lawyers argued that Carlson's statements were clearly hyperbole. As a result, no reasonable viewer would take them as a factual assertion that McDougall actually committed a crime.
While this defense may seem like a stretch based on the way that the headlines describe it, courts have actually accepted it before. For example, MSNBC host Rachel Maddow filed a lawsuit against One America Network, which successfully argued that its shows were not supposed to be taken as news. As a result, the court dismissed her lawsuit. For now, the judge is considering the motion to dismiss.
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