McDougal v. Fox News Network, LLC

Background

Karen McDougal brought one claim for slander per se against Fox News Network, LLC. She alleged that a December 10, 2018, episode of “Tucker Carlson Tonight” defamed her by referring to two women who allegedly threatened to ruin President Trump’s career and humiliate his family unless he paid them money. Fox News did not dispute that Carlson was referring to McDougal, even though he did not say her name.

McDougal focused on Carlson’s statements that the women’s conduct “sounds like a classic case of extortion” and that Trump directed Michael Cohen to pay the “ransom.” She argued that these were factual accusations that she had committed a crime. Fox News argued that, in context, the statements were opinion and rhetorical exaggeration, not factual assertions, and that McDougal had not adequately alleged actual malice.

Ruling on the Statements

The court granted the motion to dismiss on the ground that Carlson’s statements were not actionable as defamation. It explained that a defamation claim cannot be based on statements that do not communicate or imply a provably false fact. The court viewed Carlson’s comments in the context of a political discussion about campaign-finance violations, possible impeachment, and the payments involving McDougal.

The court found that Carlson’s use of “extortion,” along with his statements about threatening Trump’s career and family, was rhetorical hyperbole and opinion commentary intended to frame a political debate. The court also relied on Carlson’s statement that he was assuming Cohen’s account was true “for the sake of argument,” followed by his statement that the conduct “sounds like a classic case of extortion.” In the court’s view, the full segment would not lead a reasonable viewer to understand Carlson as making a sober factual report that McDougal had actually committed the crime of extortion.

Actual Malice

The court separately held that McDougal failed to plead actual malice. Actual malice is the constitutional requirement that a public-figure plaintiff plausibly allege that the speaker knew a statement was false or recklessly disregarded whether it was false. McDougal did not dispute that she was a public figure.

McDougal relied on allegations that Carlson was politically and personally biased in favor of President Trump, that Fox News had previously reported on the payments without calling them extortion, and that President Trump had posted positively about Carlson 47 times on Twitter. The court found these allegations conclusory or speculative. It held that the prior Fox News reports did not show Carlson knew of contrary information, and that the social-media posts did not establish a personal relationship or a plausible inference that Carlson acted with actual malice.

Disposition

Judge Mary Kay Vyskocil granted Fox News’s Motion to Dismiss the Amended Complaint. The opinion states that the Clerk of Court was respectfully requested to close the case. It does not state that the dismissal was with or without prejudice.