An attorney for Fox News told a New York federal judge at a preliminary hearing that Tucker Carlson's audience does not expect him to report the facts — even when Carlson tells his audience that he is doing so.
And the attorney further argued that Carlson has no duty to look into whether his statements are truthful.
"What we're talking about here, it's not the front page of the New York Times," Erin Murphy, the attorney, said. "It's 'Tucker Carlson Tonight,' which is a commentary show."
The statements come amid a slander lawsuit brought against the right-leaning network by Karen McDougal, the former Playmate model who was paid $150,000 by the National Enquirer in a "catch-and-kill" sting to silence her allegations about an affair with then-candidate Donald Trump, who at the time of the alleged incident was a reality TV competition host.
McDougal claims that Carlson defamed her on a December 2018 edition of his primetime show, at which time the host accused McDougal and Stephanie Clifford (aka Stormy Daniels) of "extorting" Trump.
"Remember the facts of the story: These are undisputed," Carlson said in the segment. "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," Carlson continued. "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," Carlson added. "If you were a federal prosecutor on a political mission, you would construe those extortion payments as campaign contributions."
The network wants the court to throw out the case on the argument that Carlson cannot defame anyone on his show, because his viewers do not expect him to state and verify facts. That would hinder McDougal's ability to prove that Carlson acted "with malice," which is the high bar of proof she must meet as a public figure.
Murphy, the Fox attorney, told the court that Carlson simply stirs the pot on his show — and a reasonable viewer would be able to discern between his "provocative things that will help me think harder" and straight news. The network airing Carlson's show also broadcasts news programming — and the word "news" is even in its name.
Judge Mary Kay Vyskocil asked Murphy, "Does somebody in Mr. Carlson's position have the duty of inquiry?" (In other words: Would it be grossly negligent for a primetime host on a news network to accuse someone of a felony on his program without looking into whether facts support such an allegation?)
"Not as to an actual malice standard," Murphy answered. "The Supreme Court could not be clearer."
Negligence is not malice, and Carlson's mere "failure to investigate" does not cut it, she argued.
McDougal's lawyer, Eric Bernstein, pointed out that Carlson prefaced the false accusation by literally telling viewers it was a fact: "Remember the facts of the story: These are undisputed."
Even if you concede the point that Carlson's audience knows not to take him seriously as a source for information on which to reliably base decisions impacting the course of our democracy, his declaration in that moment sent a clear message, Bernstein argued.
"It's a beat change, if you're an actor," he said. "You can even see it on his face. He gets serious. He's not being dramatic."
In contrast to Murphy's argument — "What we're talking about here, it's not the front page of The New York Times" — Bernstein pointed out that Carlson had told viewers he was delivering the "gist" of a New York Times news report earlier in the segment.
Carlson added that he would assume — "for the sake of argument" — that Trump's former "fixer" Michael Cohen had told the truth. However, he cautioned that it was not a good idea to make such an assumption.
Carlson then said the "undisputed" facts were that McDougal had committed the crime of extortion.
Though the judge ultimately accepted the case, the jury is still out on whether Fox News primetime hosts are journalists, even among themselves.
"We have to give some credit to the American people that they are somewhat intelligent and that they know the difference between an opinion show and a news show," Sean Hannity once said.
When asked about possible professional conflicts from his friendship with Trump in 2016, Hannity told the told the New York Times: "I never claimed to be a journalist,"
"I'm not a journalist," Hannity tweeted that same year. "I'm a talk host."
The FBI did not consider Hannity a journalist for the purposes of the Mueller investigation, writing in one memo: "During the campaign, Hannity tailored his shows to the agenda Manafort suggested. Hannity called himself a 'pundit,' not a journalist."
But in a 2017 NYT interview, Hannity said: "I'm a journalist, but I'm an advocacy journalist, or an opinion journalist."
Former Fox News anchor Shepard Smith told Time magazine in 2018 that the opinion side of the network doesn't "really have rules" and exists "strictly to be entertaining."
"We serve different masters," he said. "We work for different reporting chains. We have different rules. They don't really have rules on the opinion side. They can say whatever they want — if it's their opinion."
Hannity then called Smith "clueless about what we do every day." Laura Ingraham weighed in to claim that her show reports things.
And in another shot at Smith, Hannity tweeted: "Hannity breaks news daily. Warrant on a Trump assoc, the unmasking scandal, leaking intel, Fisa abuse, HRC lawbreaking, dossier and more REAL NEWS!"
Tucker Carlson revealed last week that he sold off his stake in The Daily Caller — the news site he co-founded — last year. Salon exclusively reported Wednesday that The Daily Caller appears to have operated in violation of tax law, according to a complaint filed Tuesday with the IRS by a public transparency watchdog.