An attorney representing Fox News reportedly made an interrogative statement in federal court that directly called into question the news value of the number one host in all of cable news.
“Would a reasonable viewer be coming here and thinking this is where I’m going to be hearing the news of the day?” Fox News attorney Erin Murphy asked U.S. District Judge Mary Kay Vyskocil during a hearing conducted via telephone on Wednesday, according to Law360 reporter Frank G. Runyeon’s account of what was said.
The underlying case is a defamation lawsuit filed by former Playboy model Karen McDougal, one of two women who claimed to have had past affairs with President Donald Trump but who were paid off to keep their stories private during the 2016 presidential election.
“Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money,” Tucker Carlson said during an episode of his Fox News show in December 2018. “Now that sounds like a classic case of extortion. Yet for whatever reason, Trump caves to it, and he directs Michael Cohen to pay the ransom. Now, more than two years later, Trump is a felon for doing this. It doesn’t seem to make any sense.”
McDougal sued in 2019–alleging Carlson defamed her by accusing herself and Stormy Daniels of committing the crime of extortion. Though the lawsuit is focused on the host’s alleged defamation by slander, Fox News is named the lone defendant in the case.
Slander requires the publication of a false statement of fact. Slander per se is a variant of traditional slander which makes a case against a defendant easier to prove if they accuse someone of false statement that falls under various categories recognized under New York case law. Here, McDougal has claimed slander per se because of the nature of the alleged crime.
Under New York State defamation law, the entire case essentially hinges upon whether or not a reasonable viewer would have thought that Carlson was actually accusing McDougal of a crime.
Fox News attempted to argue exactly the opposite in court on Wednesday–insisting the controversial host was simply employing First Amendment-protected hyperbole and that a reasonable viewer would have, in fact, clearly understood the host’s rhetorical device.
“There’s no statement that a reasonable viewer would understand in this context to state something provably false,” Murphy added–explicitly invoking the word “hyperbolic” to make her client’s case.
“It’s not the front page of the New York Times,” Murphy continued. “It’s Tucker Carlson Tonight. It is a commentary show. Where you’re going to hear opinion and spirited debate.”
MSNBC lawyers argued along these very lines when defending host Rachel Maddow against a defamation lawsuit that was filed by One America News Network (OAN). That lawsuit was ultimately dismissed.
Attorney Eric Bernstein, who represents McDougal, attempted to counter that characterization of Carlson’s show–insisting that the host presents his program in an “absolute, journalistic way.” He also claimed that Carlson was “trying to destroy the character and reputation of Karen McDougal” in service of some fealty to Trump.
On the episode in question, Carlson didn’t mention McDougal’s name directly but the show’s producers flashed an image of her on screen while the disputed comments were made.
[image via Chip Somodevilla/Getty Images]
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