(CN) — “Remember the facts of the story; these are undisputed,” Fox News personality Tucker Carlson told his 2.8 million viewers in 2018, before labeling former Playboy model Karen McDougal as a presidential extortionist.
On Wednesday, an attorney for the network asserted that no reasonable viewer would believe that what followed this preamble was factual reporting.
“It’s a commentary show,” Fox’s lawyer Erin Murphy, of the firm Kirkland & Ellis, insisted during arguments trying to swat away McDougal’s defamation lawsuit. “It’s a show that markets itself … as opinion and spirited debate. That context matters.”
The segment at issue aired on Dec. 10, 2018 — two days before a federal judge sentenced former Trump fixer Michael Cohen and prosecutors acknowledged for the first time that it granted immunity as part of the case to the parent company of the National Enquirer. This came months after it was widely reported that the publishing company owned by Trump’s longtime friend David Pecker was admitting that it had arranged a “catch-and-kill” scheme with Cohen to avoid reporting the stories of any women who were claiming to have had affairs with Trump.
“Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money,” Carlson declared, as the screen flashed photographs of Karen McDougal and Stormy Daniels. “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.”
Carlson did not speak either woman’s name, but for McDougal’s attorney Eric Bernstein the reference alone was slanderous.
“They know who she is,” the attorney said Wednesday, referring to Fox viewers. “They know she was a Playmate model.”
Since Cohen’s prosecution was highly publicized, McDougal calls it clear that Carlson spun his false narrative intentionally. She notes that she never approached Trump, let alone threatened him — a sequence of events backed up by the federal court record in Manhattan.
McDougal’s defamation claims cannot advance without her showing that Carlson acted with actual malice.
U.S. District Judge Mary Kay Vyskocil noted at Wednesday’s hearing this requires more than showing the Fox personality has bias and an agenda.
“You agree with me that malice is not the equivalent of ill-will or bias?”
“Of course,” Bernstein told the judge, a Trump appointee sworn in last year.
The lawyer added there were other reasons to suspect Carlson peddled a false narrative to advance his “symbiotic” relationship with the president.
Trump had promoted Carlson’s book “Ship of Fools” a little less than two months before the segment.
“It just went to NUMBER ONE!” Trump tweeted on Oct. 23, 2018.
Citing the presidential endorsement, Bernstein said: “That’s not a typical occurrence, for anyone to get congratulatory tweets for the president concerning a book.”
“Are you sure about that?” Vyskocil shot back, noting that such behavior might not be out of character for Trump.
Before the hearing began, Vyskocil disclosed a relationship with one of Fox’s attorneys, Shawn Regan, who works with the judge at the Federal Bar Council. Vyskocil serves as president of the legal organization, and Regan is its treasurer. She said that relationship would not affect her impartiality.
In trying to dismiss the lawsuit, Fox News could encounter an ironic hurdle: Sarah Palin, the folksy Alaskan politician who became a pundit for the network, sued The New York Times over its editorial tying her to a trend of partisan rhetoric fueling mass shootings.
The Second Circuit’s revival of that defamation case could now undermine Fox’s argument that Carlson’s commentary is protected opinion, if the court finds it makes false claims with reckless disregard to the facts.
Vyskocil, who pressed Fox on that new precedent, reserved decision on McDougal’s lawsuit.