On Sept. 23rd, United States District Judge Mary Vyskocil dismissed a lawsuit brought against Fox News by Karen McDougal. In McDougal v. Fox News Network, McDougal, a former Playboy model and winner of Playmate of the year in 1998, alleged that a segment on Tucker Carlson’s show, in which she was accused of extortion, constituted slander. The judge’s decision to dismiss the case provides television viewers a bleak reminder about being aware of the sources of information they consume.
Slander, as defined by the Legal Information Institute, is “a false statement, usually made orally, which defames another person.” Defamation occurs when a statement damages a third-party’s reputation.
The controversial episode aired on Carlson’s show, “Tucker Carlson Tonight,” on Dec. 10, 2018. At one point in this episode, Carlson, who is Fox News Network’s top rated host, discussed an article published by The New York Times titled “Prosecutors say Trump directed illegal payments during campaigns,” which mentions the payment made on behalf of then-Republican presidential candidate Donald Trump by his lawyer, Michael Cohen, to two women, Stormy Daniels and McDougal, prior to the 2016 presidential election.
According to The New York Times article, Cohen had said “as the election neared, Mr. Trump directed payments to two women who claimed they had affairs with Mr. Trump.” This money was used to keep Daniels and McDougal quiet and prevent them from exposing their affairs with Donald Trump.
During his Dec. 10th segment, Carlson briefly summarizes this article saying, “the gist of the story is this. Trump’s former lawyer, Michael Cohen, has told federal prosecutors that he facilitated payments to two women who said they had affairs with Donald Trump. And then, well actually that’s it. That’s the entire story right there.”
Carlson takes this analysis further, extrapolating that McDougal, whose name was not explicitly mentioned but whose picture was featured during the segment, was extorting Trump, using their affair as a means to force a payment from Trump in order to keep her quiet. The most relevant line from the segment, which is mentioned in the lawsuit, comes when Carlson asserts that McDougal “approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn't give them money."
McDougal’s lawsuit not only argues that Carlson’s claims constitute slander but also ensures to contextualize them by describing the broad audiences that the Fox News Channel and Carlson draw every night. The lawsuit states, “FNC [(Fox News Channel)] has been the most watched news channel in the country for more than 16 years,” McDougal’s complaint notes. In addition, it notes that a survey “found that among Americans who could name an objective news source, FOX NEWS is the top-cited outlet. FNC is available in 90 million homes and dominates the cable news landscape.”
Carlson’s show in particular, McDougal mentions, brings in an “average daily viewing audience of approximately 2,800,000” and that “although all of Carlson's statements regarding MCDOUGAL are untrue, he begins his news report by informing his 2.8 million viewers that his statements are ‘facts’ and are ‘undisputed.’”
McDougal establishes here that Carlson’s comments have an enormous impact on her character, hence her slander claim. By emphasizing both the Fox News Channel’s popularity as well as Carlson’s, McDougal shows how far-reaching Carlson’s comments are.
The judge, however, dismissed McDougal’s case, noting that it fails to fulfill the four requirements of a slander per se claim for both the states of New York (where Fox is located) and Arizona (where McDougal lives). In New York, for instance, defamation requires “(1) a false statement about the plaintiff, (2) published to a third party without authorization or privilege, (3) through fault amounting to at least negligence on part of the publisher, (4) that either constitutes defamation per se or caused “special damages.”
In addition to this standard, however, The New York Times v. Sullivan U.S. Supreme Court case adds another hurdle that must be met in order for celebrity figures like McDougal to successfully argue defamation. This “actual malice” standard, states that “a public figure … cannot recover for defamation unless he or she proves that the relevant statements were made with actual malice” and that the plaintiff must “alleg[e] enough facts to raise a reasonable expectation that discovery will reveal evidence of actual malice.” McDougal was unable to meet this standard as well.
Regarding the latter standard, according to Judge Vyskocil, McDougal’s argument relied too heavily on pure speculation rather than concrete facts. For instance, in McDougal’s complaint, McDougal argues that “Mr. Carlson is personally and politically biased in favor of President Trump, and, thus, would ignore the truth to publish the story supporting him.”
Put simply, McDougal fails this standard because “[E]vidence of ill will alone, without more, cannot establish actual malice.”
However, it was the judge’s justification about why Carlson’s comments were not defamatory which provides the most interesting commentary on the matter.
In McDougal’s complaint, he contends that “a reasonable person of ordinary intelligence listening or watching the Show, including its tone and purpose of reporting ‘undisputed facts’ and being the ‘sworn enemy of the lying’, [SIC] would conclude that MCDOUGAL is a criminal who extorted Trump for money.” McDougal makes note that preceding his segment, Carlson says, “remember the facts of the story, these are undisputed."
Yet Judge Vyskocil asserts that not only does Carlson’s use of the word “extortion” and criminal accusation against McDougal constitute hyperbole, which does not necessarily indicate defamation occurred, but also that McDougal’s assessment of a reasonable person is incorrect.
“[G]iven Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’ about the statements he makes,” Judge Vyskocil wrote while claiming that the “‘general tenor’ of the show should … 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.’”
Ironically, Carlson’s claims about providing factual news would not, as the court suggests, be taken as fact by a reasonable person. As NPR entitles their article on the subject, “You Literally Can't Believe The Facts Tucker Carlson Tells You. So Say Fox's Lawyers.”
However, there is an underlying issue at the bottom of this case, which is the veracity of the news sources one consumes. A regular viewer of Tucker Carlson’s program may take his various raves to heart, believing the program to produce factually verified news.
Yet, as this case shows, commentators like Carlson can get away with rhetoric hyperboles while neglecting to provide their audiences with truthful information. Carlson, who presents himself as “the sworn enemy of lying,” reaches an enormous audience under this guise.
Unsettlingly, a recent article by the Pew Research Center notes the effect media polarization has had on the United States and its media consumption habits which can show how shows like Carlson’s can reach specific audiences who trust the information espoused in these programs.
Fox News, for instance, is predominantly the most trusted news source for Republicans with 65 percent saying they trust it and 75 percent of Conservative Republicans saying they do. Additionally, considering 60 percent got political information and election information from Fox news within the past week the survey was conducted, this survey indicates that it is safe to say that shows like Carlson’s may be taken as a more factually- driven program than they actually are.
Unlike shows like the “Daily Show,” “Last Week Tonight with John Oliver” or the “Colbert Report” (when it still aired), each of which provide/provided current event news in a clearly satirical manner, Carlson’s show takes a more confrontational approach to its reporting and for some it may be hard to discern fact from fiction.
This issue is not only fixed on Carlson’s show, as others perform in the same manner. However, sensationalism such as that displayed on Carlson’s segment featuring McDougal is dangerous to the balance in the American political climate.
Ultimately, Judge Vyskocil’s decision highlights the importance of being able to find credible news sources for one’s intake of current events. Being unable to do so can leave one susceptible to believing these types of rhetorically hyperbolic soliloquies.