McDougal had sued the network over remarks that Tucker Carlson made on one of his shows about her. But U.S. District Judge Mary Kay Vyskocil wrote in her opinion that Carlson was making a statement of opinion, not fact, so a defamation claim was not actionable.
In 2016, McDougal was paid $150,000 by National Enquirer parent American Media Inc. for the rights to her story, but it was in fact a “catch and kill” effort to keep her silent in advance of the 2016 presidential election. AMI then assigned the rights to the story to a shell company formed by Michael Cohen, then Trump’s personal lawyer, allegedly at his direction. In exchange, Cohen paid AMI $125,000. Cohen plead guilty to campaign finance charges related to the scheme, but Trump denies he had an affair with McDougal.
In 2018, shortly before Cohen was sentenced, Carlson devoted a segment of his show to the case. In it, he said McDougal “approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money,” and that she engaged in a “classic case of extortion.”
“Remember the facts of the story. These are undisputed,” he said.
But Vyskocil wrote that Carlson was engaging in a kind of hyperbole. She wrote that “the context in which the offending statements were made here make it abundantly clear that Mr. Carlson was not accusing Ms. McDougal of actually committing a crime. As a result, his statements are not actionable.
The judge added, “While Mr. Carlson used the word ‘extortion,’ [Fox News] submits that the use of that word or an accusation of extortion, absent more, is simply “’loose, figurative, or hyperbolic language’ that does not give rise to a defamation claim.”
“When the statements are read in context, it is apparent that Mr. Carlson is remarking on hypocrisy he perceives, i.e. that Mr. Cohen could be prosecuted, and the President impeached, for actions falling short of the conduct Ms. McDougal purportedly engaged in during the President’s campaign. In light of that, Mr. Carlson’s statements are “a statement on matters of public concern” that deserve the highest protection.”
A Fox News Media spokesperson said in a statement, “Karen McDougal’s lawsuit attempted to silence spirited opinion commentary on matters of public concern. The court today held that the First Amendment plainly prohibits such efforts to stifle free speech. The decision is a victory not just for Fox News Media, but for all defenders of the First Amendment.”
Eric Bernstein, an attorney for McDougal, said, “We respect the court’s decision and are reviewing our options.”