This week U.S. District Judge Mary Kay Vyskocil ruled that the defamation lawsuit filed by former Playboy model Karen McDougal against Tucker Carlson and Fox News had no “merit” and dismissed her complaint. In her lawsuit, McDougal claimed that in regard to the $150,000 paid her by Michael Cohen—through American Media—to “hush-up” a sexual dalliance between Donald Trump and herself, Carlson “defamed” her by telling his audience a false version of the “facts,” which included the following:
Remember the facts of the story. These are undisputed. Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. 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.
Trump’s Fox News attorneys countered that “Carlson’s statements were not statements of fact and that she (McDougal) did not sufficiently allege genuine malice.” Furthermore, Carlson “cannot be understood to have stated facts, but instead is expressing an opinion using hyperbole to have effect.” His language “does not give rise to a complaint for defamation.” The judge bought the argument, ruling that
Such accusations of crimes also are unlikely to be defamatory when, as here, they are made in connection with debates on a matter of public or political importance.
The context in which the offending statements were made here make it abundantly clear that Mr. Carlson was not accusing Ms. McDougal of actually committing a crime. As a result, his statements are not actionable. While Mr. Carlson used the word “extortion,” Defendant submits that the use of that word or an accusation of extortion, absent more, is simply “loose, figurative, or hyperbolic language” that does not give rise to a defamation claim.
In light of this precedent and 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.” Fox persuasively argues that given Mr. Carlson’s reputation, any reasonable viewer “arrive[s] with an appropriate amount of skepticism” about the statements he makes. 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.
These disclaimers 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. Mr. Carlson’s statements, instead, seek to frame the issue for a debate that follows on the show, and do not come as a sober factual report.
But there can be no doubt that Mr. Carlson did so as hyperbole to promote debate on a matter of public concern. As a result, the Court concludes that Mr. Carlson’s statements viewed in context are not factual representations and, therefore, cannot give rise to a claim for defamation. For this reason, Defendant’s Motion to Dismiss on this ground is granted. But even if Mr. Carlson’s statements were actionable, the Amended Complaint still must be dismissed because Plaintiff has not plausibly pleaded actual malice.
This is a quite remarkable ruling, especially in its assertion that Carlson doesn’t even believe his own words, and only wants to “challenge political correctness.” Carlson’s lies are “harmless.” Carlson did leave out a number of facts in this particularly case, as reported in The Wall Street Journal days before the 2016 election. The previous May, McDougal “began to consider telling her story of a nearly yearlong affair with Mr. Trump. She believed the story would come out regardless, after another former Playboy model posted a tweet alluding to a relationship between the two.” Further,
Ms. McDougal retained Keith Davidson, a Los Angeles lawyer specializing in representing women who’d had affairs with celebrities. Mr. Davidson reached out to Dylan Howard, American Media’s New York-based chief content officer, to gauge the company’s interest in buying Ms. McDougal’s story. Messrs. (David) Pecker and Howard alerted Mr. Cohen, who in turn warned Mr. Trump, by then the presumptive Republican presidential nominee, who in turn phoned Mr. Pecker for help.
On June 20, 2016, Mr. Howard flew to Los Angeles to meet Ms. McDougal at her lawyer’s office. Mr. Howard spent hours interviewing Ms. McDougal, pressing her for every detail of the alleged affair. Ms. McDougal seemed reluctant to go public with her story. “I don’t want to be the next Monica Lewinsky,” Ms. McDougal said, referring to the young White House intern who was vilified after her affair with President Bill Clinton became public. Mr. Howard told her that without documents corroborating her story, it wouldn’t be worth more than $15,000.
But then
After the meeting, Messrs. Pecker and Howard learned Ms. McDougal had also been meeting with investigative reporters at ABC News about sharing her story in a televised interview. Mr. Cohen updated Mr. Trump on developments throughout. The ABC talks prompted American Media to offer to buy Ms. McDougal’s story for $150,000 in early August. The contract gave the publisher the exclusive rights to her story, and guaranteed Ms. McDougal and American Media two magazine covers on which she would appear as a model. As part of the deal, American Media had the option of publishing health and fitness columns under Ms. McDougal’s name.
So the facts of the case was this was what was called a “catch and kill” operation. McDougal had apparently not intended to speak of her relationship with Trump until another individual “alluded” to it on social media, and perhaps would make some money from talking about it. She hired Davidson to contact American Media, which published The National Enquirer, to see if someone would pay for her own side of the story. Pecker, who was a friend of Trump, contacted Cohen who then relayed the information to Trump. Howard tried to convince McDougal that her story wasn’t worth much, perhaps believing she would not speak of it at all. But then they found out that story might still come out on a national news program, which seemed more damaging to Trump than a story in a cheap gossip rag. As a “favor” to Trump, American Media used the funds funneled through Cohen to pay McDougal for her story; whether or not she was aware that Pecker intended not to publish her story is not clear, but they were offering her a “job,” so she had incentive not to make waves. The WSJ story came out just less than three months after McDougal signed this agreement.
But how did Carlson “interpret” this story? His “undisputed facts” were patently false. McDougal and Stormy Daniels did not approach Trump or his representatives. They did not seek to “ruin” his career or humiliate his family; only he was capable of doing that, since to his supporters he was capable of no wrong. In McDougal’s case at least, she did not even know that Trump and his representatives were involved. There was no “extortion” involved here.
It is clear that Carlson’s “spin” on the story was a mostly a lie to help Trump. Carlson in fact lies frequently on his show. The latest was in regard to Nashville Mayor John Cooper, who was subjected to a quickly debunked story by the local Fox affiliate concerning a claim that city was “hiding” information about COVID-19 cases in local bars. Tennessee Republican Sen. Marsha Blackburn—an anti-immigrant fanatic—based her call for Cooper’s resignation on Carlson giving “credibility” to a false story. Fox & Friends Steve Doocy “apologized” for the “confusion,” although after this few seconds of brevity he launched into a rioters-taking-over-the-streets story. End-of-story. Carlson off the hook, again.
I’m not sure who the judge was talking to. There may be a majority of people in this country who do not trust Fox News to use it as their primary source of news, but given the fact that Carlson’s is often the top-rated cable news hour, there are plenty of others who do take his word as “gospel.” Carlson’s lies have become so frequent that his own network had to occasionally contradict them, only to have Carlson usually doubling down on his lies. What else could he do? If he admitted to every lie he told his audience he would surely lose all credibility. He knows his audience better. They want to believe his lies—and in general they do, because they lie to themselves.
If the judge in the McDougal case believes otherwise, then she is at the very least naïve, or also lying to herself.
No comments:
Post a Comment