Fox News v. Fox Entertainment: Does The Difference Matter?

No. Not in the way you're thinking. Thank you for asking though.

It’s ubiquitous now: whenever anyone reasonably decries the proto-fascist agitation and moronic propaganda on Fox, someone will bust out with “Fox admitted in court that they’re entertainment, not news, and that nobody should believe what they say, so why can’t we just regulate them on that basis?”

You may ask, “is that true? Did they admit that? Is it a thing?”

No, not really. To teal deer it, Fox successfully argued that one particular segment on Tucker Carlson’s show could only be reasonably interpreted as making political arguments, not making factual assertions, and therefore couldn’t be defamation. That has nothing to do with whether and to what extent Fox can be regulated, shut down, or otherwise censored in the way that some short-sighted Fox-haters want.

Here’s the long version.

The Segment

On December 10, 2018, Tucker Carlson took a break from panicking over Roma bowel health and promoting white nationalist talking points to discuss the imminent sentencing of Michael Cohen, former lawyer to Donald Trump. Carlson discussed allegations that the National Enquirer’s owner had paid former model and actress Karen McDougal $150,000 for the rights her story about her relationship with Trump in order to contain and kill the story. Tucker used the story to riff on how terribly unfair investigators were, potentially, to Trump. In the process, he suggested that Ms. McDougal (who was not named, but whose picture was displayed) extorted Trump to get the money:

We’re going to start by stipulating that everything Michael Cohen has told the feds is absolutely true. Now, assuming honesty isn’t usually a wise idea with Michael Cohen, but for the sake of argument, let’s do it in this case, everything he says is true, why is what Cohen is alleging a criminal offense?

Remember the facts of the story. These are undisputed. Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. 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. Now, more than two years later, Trump is a felon for doing this. It doesn’t seem to make any sense.

Oh, but you're not a federal prosecutor on a political mission. If you were a federal prosecutor on a political mission, you would construe those extortion payments as campaign contributions. You’d do this even though the money in question did not come from or go to Donald Trump’s presidential campaign.

The Lawsuit And Fox’s Argument

Ms. McDougal sued Fox. Here’s her complaint:

She alleged that Tucker Carlson slandered her by asserting that she approached Trump to extort him and that her actions were “a classic case of extortion.” Fox removed the case from state court and federal court and filed a motion to dismiss it. Here’s the motion:

Fox’s lead argument was predictable to any First Amendment litigator and has been widely misrepresented and misunderstood: they argued that Tucker Carlson’s words were rhetoric and opinion, not fact, and therefore not defamation.

Only a provably false assertion of fact can be actionable defamation. Argument, rhetoric, hyperbole, figurative language, and opinion (unless based on false facts) cannot be defamation. What’s the difference? The question is whether a reasonable viewer, or reader, would interpret the statement as suggesting a provably true or false statement of fact. In deciding that question, American courts look to the totality of the circumstances: the context in which the statement was made (for instance, a news article vs. a talk show vs. Twitter), its general tone (for instance, whether it’s dry and factual or argumentative and boisterous), the language used (whether exaggerated or heated language was used, for instance), whether the statement used words with well-defined meanings or words with colloquial meanings, and the expectations of reasonable watchers or readers familiar with the forum (for instance, what reasonable people, if they were somehow forced to watch Tucker’s show, would expect from it — fact or hyperbole?). Under this analysis, heated language like “crook” and “extortion” and “liar” and “racist” and so forth are very often treated as non-defamatory opinion.

There are reasons to criticize this standard as a matter of policy. The standard is objective and inquires what a hypothetical reasonable person would think, and does not consider whether the actual audience is made up of angry gullible imbeciles. But there’s no question that’s the current standard.

Fox’s attorneys argued that, under this standard, a reasonable viewer would not understand Tucker Carlson to be offering factual assertions as opposed to political argument, opinion, and hyperbole. They wrote:

The "general tenor" of the segment—in fact, of the show—reinforces the conclusion that Carlson was not "stating actual facts" about extortion in the legal sense. Milkovich, 497 U.S. at 20-21. To begin with, the entire "Flawed 'Russia Probe" segment is a 15-minute diatribe over what Carlson views as "insultingly stupid" and "B.S. campaign finance nonsense." Vid. 2:58, 3:37, 12:00. And the bulk of the discussion about "extortion" arises in the context of a heated back-and-forth exchange between Carlson and a "Progressive Radio Host" who does not "like Trump." See Vid. 2:58-3:48, 5:46-12:19. That is not a natural setting in which a reasonable viewer would conclude that he is hearing actual facts about plaintiff. See, e.g., Horsley, 292 F.3d at 702 ("The fact that the parties were engaged in an emotional debate on a highly sensitive topic weighs in favor of the conclusion that a reasonable viewer would infer that Rivera's statement was more an expression of outrage than an accusation of fact"); Clifford, 339 F. Supp. 3d at 926 ("Mr. Trump's tweet displays an incredulous tone, suggesting that the content of his tweet was not meant to be understood as a literal statement about Plaintiff.").

So. Fox did not, by any stretch of the imagination, concede that Fox News is only entertainment and not news. It most, it conceded that a reasonable person would understand Tucker Carlson’s show to be offering political arguments rather than facts. This is not an unusual, extreme, or even mildly surprising argument; any defamation practitioner would expect it.

The Judge’s Decision

United States District Judge Mary Kay Vyskocil granted Fox’s motion to dismiss, finding that the facts on the face of MacDougal’s complaint showed that she could not prevail. Here’s her extensive decision:

Judge Vyskocil agreed that a reasonable viewer would not understand Tucker Carlson to be making factual claims rather than arguments and political rhetoric. Among the factors she considered: that “extortion” is frequently used in a colloquial way rather than a specific legal way (and therefore has been treated as non-factual by other courts), that Carlson began by “stipulating” that he was treating Michael Cohen’s claims as true, that Carlson said that it “sounds like” extortion, that it happened in the context of a discussion of a heated political controversy, and that Tucker Carlson’s show is framed as political commentary and debate and that the show uses exaggeration and non-literal commentary. (The judge also agreed with Fox that MacDougal didn’t adequately allege that the statements were made with actual malice, a separate issue beyond the scope of this post.)

The judge did not rule that Fox is entertainment vs. news.

In my view, though it’s plausible a judge could have come out differently, this is a very unsurprising ruling and the one I think was most likely.

The Legal Impact 

Fox’s argument, and Judge Vyskocil’s ruling, has limited legal significance. Defamation inquiry is extremely context-specific. The next time Tucker Carlson is sued for defamation, the court will still have to analyze the specific nature, surrounding words, and context of the statement in that case. Though this decision will be precedent for the concept that people understand Tucker Carlson to be dealing in hyperbole and rhetoric, that won’t be dispositive in every case, because many factors are relevant and the judge here relied on many factors.

Other than that, Fox’s argument and the judge’s ruling have no impact on Fox’s right to keep running his show or any other show. The First Amendment protects hyperbole and commentary as much as news — in fact, arguably more, since hyperbole can’t be defamatory. There’s no news vs. entertainment distinction in assessing Fox’s First Amendment rights. There’s no distinct “license” to offer entertainment vs. news. There’s no legally significant label that gets slapped on Fox. It doesn’t change the analysis of whether any of Fox’s content crosses any legal line into true threats or incitement. It doesn’t empower the FCC to punish or restrict Fox — the FCC has power over broadcast media (radio and television broadcast over limited airwaves, not cable) and doesn’t have such power over Fox, and the distinction between news and entertainment wouldn’t matter even if Fox were broadcast. It’s simply irrelevant to the question of whether the government can regulate, ban, close, or otherwise censor Fox. That’s not a thing.

Stop saying otherwise, please.

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