489 F.Supp.3d 174
S.D.N.Y.2020Background
- Plaintiff Karen McDougal, a public figure and former model, sued Fox News for slander per se over a December 10, 2018 segment of "Tucker Carlson Tonight," alleging Carlson accused her of extorting Donald Trump in connection with $150,000 paid for her story.
- The segment discussed Michael Cohen’s payments to two women; Carlson did not name McDougal on air but displayed her picture and described the alleged conduct.
- Fox removed the case to federal court and moved to dismiss, arguing Carlson’s remarks were nonactionable opinion/rhetorical hyperbole and that McDougal failed to plead actual malice.
- The court reviewed the episode transcript and recording, finding the statements were made in a political commentary context and framed as stipulative/hyperbolic opinion.
- The court also held McDougal (a public figure) did not plausibly allege actual malice—her allegations of bias (including Trump tweets) were conclusory and insufficient under New York Times v. Sullivan and Palin.
- The Amended Complaint was dismissed: statements deemed nonactionable and, alternatively, actual malice not plausibly pleaded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Carlson's statements were factual assertions (actionable) or protected opinion/hyperbole | McDougal: Carlson presented provably false facts ("Remember the facts of the story. These are undisputed") and accused her of criminal extortion | Fox: Statements were rhetorical hyperbole and opinion in a political commentary show; not reasonably understood as literal facts | Held: Nonactionable opinion/hyperbole; viewed in context Carlson framed remarks as stipulative and argumentative, not factual |
| Whether actual malice was plausibly alleged | McDougal: Carlson/Fox were biased for Trump; prior Fox reporting and Trump’s positive tweets about Carlson support inference of recklessness or knowledge of falsity | Fox: Allegations of bias and prior reporting are speculative/conclusory and do not show a high degree of awareness of probable falsity | Held: Actual malice not plausibly pleaded; allegations of bias and tweets are insufficient to infer knowledge or reckless disregard |
Key Cases Cited
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (statements implying provably false facts may be defamatory; context and form matter)
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (public-figure plaintiffs must prove actual malice)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (distinguishes public vs. private figure standards)
- Palin v. New York Times Co., 940 F.3d 804 (2d Cir. 2019) (actual malice may be plausibly pleaded with particularized facts showing bias or knowledge of falsity)
- Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989) (failure to investigate is not enough; actual malice requires high awareness of probable falsity)
- Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6 (1970) ("rhetorical hyperbole" in public debate is not actionable)
- Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235 (N.Y. 1991) (courts must consider the whole context of publication when analyzing defamatory meaning)