Defamation / Reputation
Johnson v. Steele
Closed Expands Expression
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The United States District Court for the Southern District of New York dismissed the Plaintiff’s action of slander against the Defendant as the impugned statements were mere rhetorical hyperbole and the Petitioner failed to prove actual malice. The Plaintiff claimed that she was defamed in the “Tucker Carlson Tonight” show when Mr. Carlson accused her of extorting $150,000 in exchange for her silence about her alleged affair with the former President, Donald Trump. The Court reasoned that Mr. Carlson’s statements were based on the potential for an impeachment inquiry against Mr. Trump due to campaign finance violations and the discussion of payments to the Plaintiff in the process, thus “the statements were matters of public concern”. Further, court precedents showed that accusations of extortion related to political issues are construed as non actionable.
Following the United States Presidential Election 2016, the Plaintiff, Ms. Karen McDougal, a former model and actress gained attention when stories came out about her affair with former US President Donald Trump in 2006-2007.
In 2018, during the investigation and guilty plea of Mr. Michael Cohen, Trump’s lawyer, Mr. Cohen was charged with allegations of violation of federal campaign finance laws. According to the reports, before the 2016 US elections, Ms. McDougal was paid $150,000 by American Media, Inc. (“AMI”) in exchange for the rights to her story about the affair with Mr. Trump. Subsequently, a corporate shell entity formed by Mr. Cohen at Mr. Trump’s direction bought the rights of the story from AMI for $125,000. [p. 2]
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.
The said allegations were initially denied by Mr. Trump but subsequently, in December 2018, he admitted to having made the payments on the ill advice of his lawyer, Mr. Cohen, and blamed the illegality on Mr. Cohen. Mr. Cohen eventually pleaded guilty to violations of campaign finance laws. [p. 3]
On December 10th, 2018, the Defendant, Fox News, aired an episode of “Tucker Carlson Tonight”, which contained a discussion on Mr. Cohen’s payments to Ms. McDougal. Mr. Carlson did not refer to Ms. McDougal by name during the show but at one point, while having the debate with guest commentators, Fox News displayed her picture on-screen. [p. 3]
During a debate, in the show, Mr. Carlson stated, “……Remember the facts of the story. These are undisputed. Two women approached Mr. 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…..” [p. 4]
The Plaintiff had stated in her complaint that two statements made during the show claimed as “facts” by Mr. Carlson himself were defamatory. Firstly, Mr. Carlson accused Ms. McDougal of approaching Mr. Donald Trump and threatening to ruin his career and family if he didn’t give money, and secondly when Mr. Carlson suggested that Ms. McDougal’s actions were a classic case of extortion which is a crime. [p. 5]
The Plaintiff filed her original complaint on December 5th, 2019, in the New York State Court, but before it was served, Fox News moved the case to federal court on the basis of diversity jurisdiction and filed a motion to dismiss.
The Plaintiff then filed an Amended Complaint which the Defendant also moved to dismiss claiming that Mr. Carlson’s statements “cannot reasonably be interpreted as facts” and that the Amended Complaint failed to allege actual malice. In addition to her earlier claims that during the show Mr. Carlson himself suggested that the statements made by him were facts, Ms. McDougal also stated that under Second Circuit precedent, she had adequately alleged actual malice. In response the Defendant argued that the accusations of “extortion” did not amount to a statement of fact. [p. 5]
On June 17th, 2020 the Court granted the Defendant’s motion to dismiss the case.
The main issue before the Court was whether the Defendant would succeed in its motion to dismiss and the central questions related to whether Mr. Carlson’s statements were actionable as defamation and whether Ms. McDougal failed to allege actual malice.
Fox News argued in its defense that Mr. Carlson was not stating facts in his statements on the December 10th, 2018, episode of his show and submitted that “Mr. Carlson’s statements [were] constitutionally protected opinion commentary on matters of public importance and not reasonably understood as being factual.” [p.8] It went on that the statements made by Mr. Carlson were hyperbolic and opinionated. For her part the Plaintiff suggested that the use of the word “extortion” along with a description of other alleged actions constituted false factual assertion giving rise to a defamation claim. [p. 9]
The Court emphasized the decision made by the United States Supreme Court in the case of Milkovich v. Lorain Journal Co, “that statements, whether presented as fact or opinion, may be defamatory only where they state or imply a provably false assertion of fact.” The statements made by Mr. Carlson were construed as rhetorical hyperbole as they were not accompanied by the specifics of the actions purportedly constituting the crime. [p.9] The Court noted that “hyperbole is simply not actionable for defamation”, Gross v. N.Y. Times.
The Court further observed that matters which are made in connection with debates on a matter of public or political importance do not amount to defamation, Horsley v. Rivera. It noted that the statements made by Mr. Carlson against Ms. McDougal were not actual facts but a set of non-actionable hyperbole. Mr. Carlson’s statements were based on the potential for an impeachment inquiry against Mr. Trump due to campaign finance violations and the discussion of payments to Ms. McDougal in the process, thus the court considered it “a statement on matters of public concern” [p.11]. Further, it pointed out precedents showing that accusations of extortion related to political issues are construed as non-actionable, Greenbelt Pub Ass’n.
The Court ruled that in the context of Mr. Carlson’s statements his show should be seen in its entirety and not focus on specific words. On this basis Mr. Carlson was not stating facts to defame Ms. McDougal but using his statements as hyperbole to promote the debate on a matter of public concern. The Court concluded that Mr. Carlson’s statements were not factual representation.
2. Has Ms. McDougal failed to plead actual malice?
According to Supreme Court precedent, “a public figure cannot recover for defamation unless he or she proves that the relevant statements were made with actual malice” New York Times v. Sullivan. Further, a defamatory statement must be “made with knowledge that it was false or with reckless disregard of whether it was false or not”, Church of Scientology Int’l v. Behar. The Court reiterated that, “a public-figure plaintiff must plead plausible grounds to infer actual malice alleging enough facts to raise a reasonable expectation that discovery will reveal evidence of actual malice”, Biro v. Conde Nast.
The Court emphasized that the bar for actual malice should be high and not every second comment should be considered as an act of actual malice. “Failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard”, New York Times v. Sullivan. Instead the Court suggested that for the plaintiff to prove actual malice, he/she needs to allege that the speaker possessed a “high degree of awareness of [the statements’] probable falsity”, Garrison v. Louisiana.
The Court referred to the other facts highlighted by the Plaintiff in an effort to make out actual malice, for example, she suggested that (1) Fox News (not Carlson himself) had previously reported on the Cohen criminal prosecution and the payments to Ms. McDougal without referencing extortion, (2) Mr. Carlson had a personal relationship with Trump as evidenced by 47 Twitter posts and (3) Mr. Carlson had a pre-determined narrative based on his political bias. The Court said that Ms. McDougal’s allegations regarding these theories were largely conclusory or speculative and without more specific facts bearing on Mr. Carlson’s knowledge or motives to act based on personal bias, she could not establish a plausible inference of actual malice.
The Court concluded that the statements made in the Carlson show were mere rhetorical hyperbole which was intended to frame a political discussion and therefore were not actionable as defamation. Further, the standard to prove actual malice in accordance with long-standing precedents was not met by the Plaintiff. On these two counts, the Court granted the motion to dismiss the amended complaint. [p.19]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment is in line with a series of decisions beginning with Sullivan that have upheld the right to freedom of speech under the first amendment. Although the ‘actual malice’ standard has witnessed occasional hiccups in its operation, the Court has aptly applied the doctrine in the present case and reiterated the standard to be met in defamation cases. What assumes significance is the Court’s assessment that the legal standard applicable will be in accordance with the relevant State law on defamation, however, the constitutional defenses to defamation would apply regardless of the operation of the State law. This line of reasoning is in consonance with the decision of Gertz v. Robert Welch, wherein the Court had bestowed the determination of standards of libel to the States. Therefore, the decision heralded the overarching reach of the constitutional protections over State laws.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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