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| McDougal in 2007 (Sam Posten III CC BY-SA 2.0) |
The case arose in connection with allegations that Trump and lawyer Michael Cohen cooperated with the National Enquirer to "catch and kill," that is pay for and suppress, potentially damaging stories about Trump's personal life. Relying on allegations in the complaint (citations and notes here omitted), the court summarized the background as favorable to the plaintiff:
Ms. McDougal ... became the subject of front-page stories following the 2016 United States Presidential Election based on allegations that she had engaged in a year-long affair (from 2006-2007) with now-President Trump.
The allegations of an affair arose during the 2018 investigation and guilty plea of Mr. Trump’s lawyer and aide Michael Cohen on charges that he violated federal campaign finance laws. Specifically, law enforcement investigators and the media revealed that in the months leading up to the 2016 election, American Media, Inc. (“AMI”)—the company behind National Enquirer and whose CEO, David Pecker, allegedly is close with the President—had paid Ms. McDougal $150,000 in exchange for the rights to her story about the affair with Mr. Trump. AMI then assigned the rights to the story to a corporate shell entity formed by Mr. Cohen allegedly at Mr. Trump’s direction, and in exchange for the assignment Mr. Cohen paid AMI $125,000.
During the Government’s investigation of these payments, Mr. Cohen and Mr. Pecker both revealed that Mr. Trump had directed the AMI payment to Ms. McDougal in the first place, and then personally reimbursed the payments himself, all as part of an effort to avoid having the allegations affect the 2016 election. Mr. Trump initially had denied knowledge of any payments to McDougal, but by December 2018, had admitted to the payments, arguing that they were made on the advice of Mr. Cohen and that any illegality was Cohen’s fault. Mr. Cohen ultimately was charged with and pleaded guilty to violations of campaign finance laws.
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| Carlson in 2018 (Gage Skidmore CC BY-SA 2.0) |
"Remember the facts of the story. These are undisputed. 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.
"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. If you were a federal prosecutor on a political mission, you would construe those extortion payments as campaign contributions."McDougal sued for slander per se over the accusation of extortion. The court dismissed the case on Thursday on two grounds. First, the court ruled that Carlson's statements were protected by the First Amendment as hyperbolic comment on politics. Second, the court ruled that McDougal had failed to plead a case that could meet the high bar of actual malice, i.e., that Carlson knew the assertions to be false or spoke in reckless disregard of truth or falsity.
The case seems soundly decided, though has curious implications for what passes as journalism today. As Slate observed, the former holding accepts the argument of Fox News that reasonable viewers of Carlson's show are "in on the gag[:] ... [that] Carlson is not 'stating actual facts' but simply engaging in 'non-literal commentary'[;] ... that given Mr. Carlson’s reputation, any reasonable viewer 'arrive[s] with an appropriate amount of skepticism' about the statements he makes." The court concluded, "Whether the Court frames Mr. Carlson’s statements as 'exaggeration,' 'non-literal commentary,' or simply bloviating for his audience, the conclusion remains the same—the statements are not actionable."
The case is McDougal v. Fox News Network, LLC, No. 1:19-cv-11161 (S.D.N.Y. Sept. 24, 2020). The case was decided by U.S. District Judge Mary Kay Vyskocil, a New York City corporate litigator whom President Trump appointed to the bench. For the related subject of "catch and kill," I added links to McDougal under the Clifford cases at the Trump Litigation Seminar. Read more about Tucker Carlson in the Columbia Journalism Review (Sept. 5, 2018).
