You Literally Can’t Believe The Facts Tucker Carlson Tells You. So Say Fox’s Lawyers

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Fox News host Tucker Carlson «is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary,’ » U.S. District Judge Mary Kay Vyskocil wrote.

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In reality, McDougal never approached Trump. She and her representative had spoken to ABC News and to the National Enquirer because, she said, she feared word of the affair would leak out during the campaign anyway and she preferred to be the one to tell the story. It wasn’t publicly known that David Pecker, then the CEO of the tabloid’s parent company, had promised Trump he would help keep stories about extramarital affairs from seeing the light of day.

Carlson and Fox never corrected that significant error, as The Washington Post’s Erik Wemple underscored.

Not to worry, Carlson’s lawyers said. In written briefs, they cited previous rulings to argue Carlson’s words were «loose, figurative or hyperbolic.» They took note of a nonjournalist’s use of the word «extort,» which proved nondefamatory because it was mere «rhetorical hyperbole, a vigorous epithet.»

Carlson has been accused of hyperbolic, vicious and unfounded claims about women, people of color and immigrants in the past. This year, his audiences have made his show the top-rated program in the history of cable news. He maintains the backing of Fox Corp. Executive Chairman and CEO Lachlan Murdoch.

The Daily Beast reported Tuesday that Fox recently slashed its research team, cutting it by about one-fourth during modest networkwide layoffs. Fox News said that is overstating the size of the cut to the unit. It said it eliminated duplication and those functions are conducted elsewhere throughout its newsroom and programs.

In Carlson’s defense, Fox’s attorneys, from Kirkland & Ellis LLP and Hunton Andrews Kurth LLP, noted that meeting the standard of «actual malice» requires more than just showing someone should have researched or investigated a subject before popping off, thanks to U.S. Supreme Court rulings.

The Fox team’s legal briefs compared Carlson’s show to radio talk-show programs hosted by ex-MSNBC and Fox Business star Don Imus, who won a case more than two decades ago because an appellate court ruled that «the complained of statements would not have been taken by reasonable listeners as factual pronouncements but simply as instances in which the defendant radio hosts had expressed their views over the air in the crude and hyperbolic manner that has, over the years, become their verbal stock in trade.»

In sum, the Fox News lawyers mocked the legal case made by McDougal’s legal team. She alleged «a reasonable viewer of ordinary intelligence listening or watching the show … would conclude that [she] is a criminal who extorted Trump for money» and that «the statements about [her] were fact.»

«Context makes plain,» Fox’s lawyers wrote, «that the reasonable viewer would do no such thing.»

The judge fully agreed.

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