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Tucker Carlson doesn’t have an obligation to investigate the truth of statements before making them on his show, and his audience doesn’t expect him to report facts, a lawyer for Fox News told a New York federal judge on Wednesday.
The network is facing a slander lawsuit from Karen McDougal, a former Playboy model who made headlines over a $150,000 payment she received from the National Enquirer in connection with her alleged affair with Donald Trump.
McDougal claims Carlson defamed her and accused her of a crime in a segment that also discussed Stormy Daniels. Here’s what Carlson said that she takes issue with: “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.”
To complicate matters, he also earlier in the broadcast said that he was recapping the “gist” of a New York Times story and assuming “for the sake of argument” that things ex-Trump lawyer Michael Cohen had said were true while noting it wasn’t wise to make such an assumption, but he also stated, “Remember the facts of the story; these are undisputed.”
Fox News wants U.S. District Court Judge Mary Kay Vyskocil to toss the complaint, arguing both that nothing Carlson said is defamatory because it can’t be interpreted as stating actual facts and that McDougal can’t prove he acted with actual malice, which she must to succeed on her claims because she’s a public figure.
Fox News’ attorney Erin Murphy argued that Carlson repeatedly couched his statements as hypotheticals to promote conversation and that a reasonable viewer would know his show offers “provocative things that will help me think harder,” as opposed to straight news.
“What we’re talking about here, it’s not the front page of The New York Times,” said Murphy. “It’s Tucker Carlson Tonight, which is a commentary show.”
While discussing what constitutes reckless disregard for the truth in regard to the actual malice standard, Judge Vyskocil asked Murphy, “Does somebody in Mr. Carlson’s position have the duty of inquiry?”
Murphy replied, “Not as to an actual malice standard. The Supreme Court could not be clearer.” She argued malice isn’t a negligence standard, and “failure to investigate” the truth of a statement doesn’t suffice.
The Fox News lawyer also argued that even if Carlson were aligned with Trump, that’s not enough, and you can’t reach the actual malice standard “just by saying someone has motive for lying.”
McDougal’s lawyer Eric Bernstein emphasized the phrase “remember the facts” and claims that moment in his segment signaled a shift from commentary to reporting news. “It’s a beat change, if you’re an actor,” he argued. “You can even see it on his face. He gets serious. He’s not being dramatic.”
Bernstein’s arguments supporting actual malice rely on Fox News’ previous coverage of McDougal and a tweet from Trump praising Carlson’s book. Vyskocil seemed dubious, asking “Are you sure the president doesn’t tweet about anyone with whom he doesn’t have a personal relationship?”
She ultimately took the matter under submission.
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