As reported here in June, to defend itself against a defamation lawsuit brought by Karen McDougal, Fox was arguing in part that “Tucker Carlson Tonight” is a commentary, not news, show — that “a reasonable viewer would know his show offers ‘provocative things that will help me think harder,’ as opposed to straight news,’” in Fox’s attorney’s words.
Or put another way, Fox News’ core argument was that Carlson’s disputed comments were “constitutionally protected opinion commentary on matters of public importance and are not reasonably understood as being factual,” in the words of the opinion just handed down by Judge Mary Kay Vyskocil, of United States District Court in Manhattan.
Since you may not be able to recall McDougal off the top of your head, given the sheer volume of scandals associated with the man currently occupying the White House: She’s one of the women who have said that they had adulterous affairs with him before he became president. The one who was silenced prior to the 2016 election after The National Enquirer, working with now-convicted former Trump lawyer Michael Cohen, bought and then "killed” her story to protect Trump. (Trump denied the affairs.)
McDougal sued Carlson for falsely accusing her of extortion last year, when he claimed on his show that she and another woman had “approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money.”
That characterization of McDougal's actions was false, which is why she sued. But the judge sided with Fox News.
Part of Vyskocil's decision had to do with her assessment that McDougal had not met the “high bar” of proving actual malice that's required by a public figure.
The other factor in her decision boils down to her argument that Carlson’s remarks, even if false, were within a context that made them "a statement on matters of public concern’ that deserve the highest protection.”
She described the statements as “rhetorical hyperbole and opinion commentary intended to frame a political debate, [which], as such, are not actionable as defamation.”
Most interestingly, in terms of what it says about Carlson's factual credibility, she added: “Given Mr. Carlson’s reputation, any reasonable viewer ‘arrive[s] with an appropriate amount of skepticism’” about his comments.
“In other words,” noted The New York Times’ coverage of the verdict, “Mr. Carlson’s viewers may not necessarily believe everything they hear.”
The objectionable point about Vyskocil’s take — in my opinion about this "matter of public concern" — is that she should have stated that “all Tucker Carlson viewers should arrive with an appropriate amount of skepticism."
Clearly, no one knows how many viewers of Carlson's show — which, like Trump advisor/Fox News host Sean Hannity's, bears a prominent Fox News logo — perceive this content as news, rather than political opinion that makes "hyperbole" OK.
And given that Trump has spent four years dismantling our democracy piece by piece and lying to the American people — including admittedly “playing down” a virus that has now cost us more than 200,000 lives and counting — can those who choose to base their views on media pundits who've been complicit in spreading and legitimizing (if not originating) such dangerous misinformation be described as “reasonable”?
How many of those who thought they were watching news, or at least opinions not based on lies or distortions of truth — those who lack the “reasonable" skepticism the judge seems to think is a given — are now primed to also buy into the culmination of Trump’s plan to assume indefinite control of our country, election results be damned?
Yes, the precious First Amendment that has allowed journalists of integrity to keep us informed of the nefarious goings-on in this Administration, despite all of Trump’s attempts to squelch and discredit legitimate news, also still protects the expression of all kinds of political opinions, no matter how misleading or potentially dangerous.
We should all be incredibly grateful for that.
That same protection also allowed U.S. presidential historian Michael Beschloss to issue a crucial warning to Americans last night on MSNBC.
Asked by Rachel Maddow whether there is any historical precedent for a U.S. president to try to invalidate the results of an election before the votes are counted, Beschloss replied: “Nothing even remotely similar. You want to go into history to look for something like this, go into Italian history and look at Mussolini. This is the way dictators come to power. [Trump is] telling you what he intends to do…”
Beschloss urged Americans not to let Trump "steal democracy" by trying to delegitimize the election process — which has always included perfectly legitimate mail-in balloting (including by hundreds of thousands of military troops and by Trump himself) — so that he can try to declare that he's won if the results go against him. “This is not a drill,” Beschloss emphasized.
So while I absolutely empathize with Karen McDougal — who was used and betrayed by Trump and his henchmen, including his buddies at the Enquirer, then unfairly accused of false motivations and actions by Carlson and other Trump supporters — Judge Vyskocil was right to err on the side of the First Amendment. The last thing we need right now is another judge chipping away at one of our foundational Constitutional rights and principles, particularly free speech.
Still, I think she was either disingenuous or incredibly naive to ignore the reality that many Americans — and people worldwide — are failing to bring anything close to "an appropriate amount of skepticism" to their consumption of media, whether that's "Trump TV" or social media that's suffused with Russian propaganda designed to destroy our world-envied election system and democracy through their ally Trump.