MANHATTAN (CN) — Calling it clear that Fox viewers aren’t listening to Tucker Carlson for facts but for entertainment, a Trump-appointed federal judge threw out defamation claims from a former Playboy model who claims she had a 10-month affair in 2006 with the current president.
“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,” U.S. District Judge Mary Kay Vyskocil wrote in 19-page opinion Thursday.
Karen McDougal, 49, sued Fox News in December 2019 — roughly one year to the day that its personality falsely told his 2.8 million viewers that her story about a monthslong affair with President Donald Trump “sounds like a classic case of extortion.”
“Remember the facts of the story; these are undisputed,” Carlson had said, as the screen flashed photographs of McDougal and adult film actress Stormy Daniels.
“Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. … For whatever reason, Trump caves to it, and he directs Michael Cohen to pay the ransom.”
Fox removed the case to federal court where its lawyer argued in June that no reasonable viewer would believe that “undisputed facts” would follow Carlson’s preamble.
“It’s a commentary show,” Fox’s lawyer Erin Murphy, of the firm Kirkland & Ellis, insisted at the hearing. “It’s a show that markets itself … as opinion and spirited debate. That context matters.”
U.S. District Judge Vyskocil agreed Thursday, saying Carlson cannot be liable for his “hyperbolic rhetoric.”
“Given Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’ about the statements he makes,” the 19-page opinion states.
“Such statements are just one type of the ‘rhetorical hyperbole’ normally associated with politics and public discourse in the United States.’ This is especially true in the context of commentary talk shows like the one at issue here, which often use ‘increasingly barbed’ language to address issues in the news.”
Fox News Media celebrated the ruling as a triumph for free speech. “Karen McDougal’s lawsuit attempted to silence spirited opinion commentary on matters of public concern,” a spokesperson for the network said on Thursday. “The court today held that the First Amendment plainly prohibits such efforts to stifle free speech.”
Judge Vyskocil wrote that, even if Carlson’s statements were actionable, McDougal has not shown actual malice.
McDougal was unsuccessful in attempting to document that malice by pointing to “sheer political bias,” specifically Trump’s online fondness and praise for Carlson on Twitter.
“The court is unaware of any law — and plaintiff has not provided any — that establishes any number of social media posts by someone else as indicative of a close personal relationship sufficient to establish actual malice,” the opinion states. “Instead, while the posts might indicate that the President follows or even admires Mr. Carlson, it is pure speculation to assume the reverse, and the tweets alone certainly do not establish any kind of personal relationship.”
Judge Vyskocil was confirmed late last year to fill a seat vacated by Loretta A. Preska.
Representatives for McDougal did not immediately respond to requests for comment Thursday.
Two days after the Carlson segment on MacDougal aired, a federal judge sentenced former Trump fixer Michael Cohen to prison, and prosecutors acknowledged for the first time that it had granted immunity, as part of the case, to the parent company of the National Enquirer.
The sentencing came months after it was widely reported that the publishing company owned by Trump’s longtime friend David Pecker 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.
Michael Cohen is currently in home confinement serving out the remainder of his three-year sentence for tax fraud, lying to Congress and violating campaign-finance laws.
The now-disbarred lawyer admitted to arranging hush payments to McDougal and Stormy Daniels for their silence on alleged affairs with Trump.