Popular Facebook page Occupy Democrats went viral with a post claiming that Fox News avoids lawsuits by claiming that “it’s NOT real news, but rather ‘entertainment.’”
This post has a seed of truth to it: Fox News host Tucker Carlson was sued for slander in 2020 by Karen McDougal, a former Playboy model who sold the rights of the story of her affair with Donald Trump to the National Enquirer. Carlson claimed that McDougal attempted to extort money from Trump—though she never asked Trump for money or even approached him. McDougal sued, and in response Fox’s legal team argued that his comments “cannot reasonably be interpreted as facts.”
Judge Mary Kay Vyskocil—district judge of the U.S. District Court for the Southern District of New York—heard the case and agreed, finding that “given Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’ about the statements he makes” and that “this overheated rhetoric is precisely the kind of pitched commentary that one expects when tuning in to talk shows like Tucker Carlson Tonight, with pundits debating the latest political controversies.”
“The Court concludes that the statements are rhetorical hyperbole and opinion commentary intended to frame a political debate, and, as such, are not actionable as defamation,” wrote Vyskocil in her ruling.
Carlson isn’t the only opinion show host to win a lawsuit with such a defense: David Folkenflik of NPR noted that Rachel Maddow’s lawyers used a similar argument to convince a judge to dismiss a libel lawsuit brought by One America News Network. The judge ruled that Maddow’s comments about an OANN reporter being “on the payroll for the Kremlin” could reasonably be understood to be opinion.
But while Fox’s lawyers argued Carlson’s opinion show should not be taken for news, Fox hasn’t argued that all of its content is “entertainment” as Occupy Democrats claims. Fox News is currently facing a defamation lawsuit from Dominion Voting Systems, which alleges that Fox’s coverage of the 2020 election promoted baseless conspiracy theories about Dominion voting machines. While the argument that some of the coverage was opinion was part of the Fox legal defense, the network’s attorneys put forth the argument that sharing Dominion conspiracy theories was part of “neutral reportage” of allegations made by public figures and a “fair report” of legal proceedings.
Fox lawyers made similar arguments in the lawsuit filed against the company by Smartmatic, another supplier of voting technology. Paul Clement, a lawyer representing Fox Corporation, defended false allegations about Smartmatic on Lou Dobbs’ Fox show by saying the network had a constitutional right to report on claims made by Trump’s team. “If the First Amendment means anything, it means that Fox cannot be held liable for fairly reporting and commenting on competing allegations in a hotly contested and actively litigated election,” Fox lawyers said in a statement.
While Fox’s lawyers may have successfully defended Carlson against an accusation of slander by arguing that his show isn’t “news,” Fox News has not claimed that this is true of all of its content.
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