| 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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