A federal judge recently dismissed a defamation lawsuit filed by former Playboy model Karen McDougal against Fox News host Tucker Carlson. The lawsuit concerned statements Carlson had made about McDougal during his show “Tucker Carlson Tonight” which airs on the Fox News Channel. The judge ultimately granted the motion to dismiss filed by Fox News after determining that the allegedly defamatory statements constituted only nonactionable opinion and rhetorical hyperbole as a matter of law.
The statements at issue in the lawsuit were made by Carlson on a segment of his show that aired on December 10, 2018. During that show, Carlson discussed alleged payments made to McDougal in an effort to keep her from discussing her alleged affair with President Trump back in 2006. Carlson did not refer to McDougal by name when making the comments, though at one point during the show her picture was displayed on-screen.
The opinion by U.S. District Judge Mary Kay Vyskocil quotes at length from the transcript of the show in which Carlson made the allegedly libelous statements. From the several minutes of dialogue reproduced in the opinion, the Court identified two statements that McDougal cited in her complaint as giving rise to a claim of defamation per se. The first statement was that McDougal “approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give [her] money.” The second statement claimed that McDougal’s actions were “a classic case of extortion,” which is a crime. Nearly a year after these statements aired, McDougal filed a single count complaint for defamation per se in a New York state court which Fox News subsequently removed to federal court.
In its motion to dismiss, Fox News argued that the lawsuit was an attempt to silence the media from discussing matters of public concern. It argued that the defamation per se claim failed because the statements constituted nonactionable opinion and rhetorical hyperbole that is protected by the First Amendment. It also argued that the complaint failed to allege facts to support an inference that Fox News acted with actual malice, a necessary requirement when the plaintiff is a public figure.
The Court agreed and dismissed the complaint with prejudice for these reasons. In finding that the comments were not statements of fact, the Court noted that “Carlson himself aims to ‘challenge political correctness and media bias.’” Based on the “general tenor of the show,” the Court wrote, a reasonable viewer would understand that Carlson “is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal’ commentary.” “This overheated rhetoric is precisely the kind of pitched commentary that one expects when tuning in to talk shows like ‘Tucker Carlson Tonight’,” the Court added.
In New York, as in Illinois, insults and hyperbolic statements are generally not actionable as defamation. Instead, they are considered to be statements of nonactionable opinion that the average viewer would understand is not meant to be taken literally. In explaining this concept, the Court wrote that “Fox persuasively argues… that given Mr. Carlson’s reputation, any reasonable viewer ‘arrives 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 Court wrote, “the conclusion remains the same—the statements are not actionable.”
The Court also pointed to the context of what was being discussed when the statements were made as further justification for finding the statements to be nonactionable. “Such accusations of crimes also are unlikely to be defamatory,” the Court explained, “when, as here, they are made in connection with debates on a matter of public or political importance.” First Amendment jurisprudence spanning more than half-a-century is clear that the First Amendment provides great protection to discussions on matters of public concern.
The Court also found that the claims failed because McDougal’s complaint failed to establish that the defendant media company acted with actual malice. Longstanding Supreme Court precedent requires that a public figure plaintiff prove that the allegedly defamatory statements were made with actual malice in order to recover for defamation.
The Court’s full opinion is available online here.
Our top-rated by Super Lawyers Naperville, Oak Brook, and Wheaton defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. You can view here a federal court decision where we prevailed in a libel per se claim asserting the innocent infringer defense. Here is an arbitration decision where we successfully defended our client by presenting evidence that our client’s 20+ YouTube videos containing negative opinions about a used car dealer were substantially true and were protected opinion under the First Amendment. We recently required a defendant who publicized an allegedly false lawsuit regarding our client to provide an apology and full retraction as part of a confidential financial settlement following our filing of a $16 million suit for libel per se in federal district court.
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