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In SDNY Fox News Seeks To Dismiss McDougal Suit Saying Carlson Lacked Actual Malice

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, June 17 – In Karen McDougal's lawsuit against Fox News, there was an oral argument on Fox' motion to dismiss on June 17 before U.S. District Court for the Southern District of New York Judge Mary Kay Vyskocil. Inner City Press covered it.
  Judge Vyskocil began by disclosing that she well knows Fox News' lawyer Shawn Regan, who is the treasurer of the Federal Bar Council (FBC) of which she (Judge Vyskocil) is the president. Plaintiff's counsel had no objection. 

Fox' lawyer Erin Murphy noted that Tucker Carlson said that he does not believe the source but is only accepting that as true arguendo, to consider the implications of payments. She said Mr. Carlson was discussing hypotheticals.

   Fox' lawyer said, This claim does not meet the Constitutional standard, citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990) - the 1st Amendment protects statements that "cannot 'reasonably be interpreted as stating actual facts.'"

She said, Mr. Carlson quipped that "the President has been accused of killing Kennedy"... you can't sue this type of statement [or show] for defamation.

 Judge Vyskocil: Talk to me about actual malice.

Fox' lawyer: It seems to us Ms. McDougal admits she is a public figure. So she has to meet the actual malice standard. This is a term of art, about the state of knowledge that you had. Actually knowledge of falsity?

Judge Vyskocil: She seems to be pleading reckless disregard for the truth. So I'm asking you, does someone in Fox' position have a duty of inquiry?

Fox' lawyer: No - reckless disregard is not a negligence standard, it requires high degree of awareness of falsity.

Judge Vyskocil: She also alleges bias by Mr. Carlson... the tweeting... that Mr. Carlson is political aligned with the President.

Fox' lawyer: Insufficient even if true. "Motive in publishing a story... cannot provide a sufficient basis for finding actual malice."

 Fox' lawyer: We are supposed to be encouraging robust debate. Judge Vyskocil: Let's talk about Palin v. NY Times.

Fox' lawyer: Yes, let's. This case is difference. In that case, Mr Bennet has a personal relationship with the shooting, through his Senator brother.  Fox' lawyer: Here, there's not allegation Mr. Carlson had any personal relationship with the payments. He was just reporting, uh, commenting on them.

Judge Vyskocil: Mr. Bernstein, do you concede your client is a public figure?

Bernstein: A limited public figure.... We think Arizona law should applies. She lives there. As to my client, Mr. Carlson spokes as if he were giving facts, this is what happened, ladies and gentlemen.

 Judge Vyskocil: He said, let's stipulate that what Michael Cohen said is true. 

McDougal's lawyer Bernstein: Carlson said, "This was a classic case of extortion."

Judge Vyskocil: The transcript I have, he says "That sounds like a classic case of extortion."

Bernstein: "It's both."

 Judge Vyskocil: Malice is not the equivalent of ill-will or bias. Bernstein: Palin v NYT was about an editorial, a predetermined narrative. Here, too  it was a tumultuous time, potential impeachment based on the payments. The President tweeted about Carlson's book

 Judge Vyskocil: The whole segment was 2 minutes? I don't have the video with me, I'm working remotely. 

Bernstein: I think we've satisfied the standards that we have to.

Judge Vyskocil: Anything else?

Bernstein: I don't think so. It's a little awkward on the phone. But one more thing - we say Carlson was asserting facts he knew were not true.

Judge Vyskocil: Don't you need to assert facts, not just recite the standard? Bernstein: He entertained doubts at the time... He had a relationship with Donald Trump...

Judge Vyskocil: Are you saying the President only tweets praise at people he knows?

Bernstein: He works for Fox News...

Judge Vyskocil: You're starting to repeat yourself. Ms Murphy?

 Fox' lawyer Erin Murphy: It's about what Mr. Carlson knew, not what Fox News knew

Judge Vyskocil: I'll take the matter under submission. You will have a decision as soon as we are able.

The case is McDougal v. Fox News Network, LLC, 19-cv-11161 (Vyskocil).


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