Tucker Carlson's Winning Legal Defense Against Slander

The happy guy -- the court bought his defense

Last September, NPR reported on the outcome of a slander case brought by Karen McDougal against Tucker Carlson. In his defense, Carlson argued that he did not slander McDougal because no one would believe that the things he says on his Fox News broadcast are true. NPR writes:

Tucker Carlson appears to be made of Teflon. Fox News' top-rated host has been repeatedly accused of anti-immigrant and racist comments, which have cost his political opinion show many of its major advertisers. Yet Carlson endures in his prime-time slot.

Now comes the claim that you can't expect to literally believe the words that come out of 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's, 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.

Sidney's lawsuit

This case is followed by Sidney Powell's now pending defense against a $1.3 billion defamation lawsuit that Dominion Voting Systems filed against her, discussed here before. In her defense, Powell argues that “no reasonable person would conclude that the statements were truly statements of fact” because “Plaintiffs themselves characterize the statements at issue as 'wild accusations' and 'outlandish claims,' and such claims are repeatedly labeled 'inherently improbable' and even 'impossible.'” Powell made her assertions on various Fox News programs.

On top of that, Powell still asserts she believes her claims are just her opinions, but they are actually true. That takes real nerve. One the one hand she argues no reasonable person could take her seriously, but at the same time she speaks the truth. Therefore, should the reasonable person be confused?

Hey, you boobs, If Tucker can get away with it, so can I

and I've got the cojones to do it!

The new Fox lawsuit

Meanwhile, Dominion Voting Systems filed a $1.6 defamation lawsuit against Fox News, which seems to be in a rock and a hard place. Fox has to stand by the pretense that it broadcasts real news, but at the same time has argued for Carlson that he is a liar (spewer of non-literal commentary). Carlson's winning legal defense that he is just a blowhard might complicate Fox's likely defense that it is a serious news source and deserves free speech protection as a member of the press. NPR comments on this new mess:

Dominion Voting Systems has filed a $1.6 billion defamation lawsuit against Fox News, saying the network spread false claims that the voting machine company was involved in voter fraud during the 2020 presidential election.

"Fox sold a false story of election fraud in order to serve its own commercial purposes, severely injuring Dominion in the process," according to the lawsuit filed Friday in Delaware. "If this case does not rise to the level of defamation by a broadcaster, then nothing does."

"Fox endorsed, repeated, and broadcast a series of verifiably false yet devastating lies about Dominion," the complaint says, including claims that the company's software manipulated the results of the 2020 vote.

In response, Fox News issued a statement Friday morning stating that it "is proud of our 2020 election coverage, which stands in the highest tradition of American journalism, and will vigorously defend against this baseless lawsuit in court."

If Dominion decided to file a defamation lawsuit against Carlson (in addition to the Fox lawsuit), that would be really interesting. Then Fox would have to argue that one of its top news entertainer blowhards is a liar but Fox only broadcasts real news. What seems to be a possible impending disaster is that the courts will make defamation law meaningless. 

Fox: We only tell the truth, but reasonable people should not believe that

Reasonable person: Huh?

The future of defamation law

If I recall right, meaninglessness is happened to age discrimination law. A company successfully argued that it was not discriminating on the basis of age but instead was just seeking employees would would work for lower wages. The court agreed that argument was adequate without other contrary evidence (which almost never exists). After that, all companies argued the same thing and age discrimination lawsuits withered and died. 

Is about the same thing brewing for defamation law? If so, it would be an odd twist. When he was in office, the ex-president wanted defamation laws weakened so that he could sue newspapers into oblivion to shut them up. Now, his own judge appointees may be going in the opposite direction, or far more ominously, in a direction where one partisan side can use it against opponents, but the opponents cannot use it the same way. At present, it is not clear that the courts could dream up the excuses needed to convert defamation law into a mostly partisan weapon. 

But given the far right extremism-fascism of the judges the ex-president put on the bench, all possibilities are on the table, including crackpot possibilities.