Hypocrites: THR Knocks FNC for Using Same Legal Argument They Praised MSNBC for Using

June 19th, 2020 4:54 PM

The Fox News Channel-hating Hollywood Reporter displayed a case of the sads and wholesale hypocrisy on Wednesday, throwing a fit about FNC lawyers declaring in a slander lawsuit from Karen McDougal that Tucker Carlson Tonight isn’t the same as the frontpage of a newspaper. 

Consistency has never been a liberal media strong suit, so it shouldn’t come as a surprise that THR saw no problem with and, in fact, praised MSNBC for offering the same argument in a 2019 suit brought by One America News against Rachel Maddow (which was dismissed in October).

THR’s Ashley Cullins struck an ominous tone in ripping FNC: “Tucker Carlson doesn't have an obligation to investigate the truth of statements before making them on his show, and his audience doesn't expect him to report facts, a lawyer for Fox News told a New York federal judge on Wednesday.”

Whoa! That sounds terrible! But as usual, this was liberal media spin once you actually look at the facts and the similarities to the Maddow case.

OAN brought suit in July 2019 after Maddow warned the “outlet the President is promoting shares staff with the Kremlin” with OAN anchor Kristian Rouz also contributing to the Russian state media organization Sputnik.

“In this case, the most obsequiously pro-Trump right-wing news outlet in America really literally is paid Russian propaganda. The on-air U.S. politics reporter is paid by the Russian government to produce propaganda for that government,” she added.

In a brief from that legal battle, MSNBC lawyers argued that Maddow’s “comment must therefore be examined...as an opinion-laden, politics-focused discussion on an evening cable news show” with “colorful commentary.” 

Here’s the relevant portion of that brief (click “expand”):

As here, statements made in the context of opinion- or commentary-focused media are presumed to be non-actionable. See, e.g., id. at 1123, 1126 (confirming that the setting of the alleged defamatory statement is an opinion column and finding statement non-actionable opinion).

Statements uttered in political discussion are also presumptively protected opinion. See Koch v. Goldway, 817 F.2d 507, 508–10 (9th Cir. 1987) (statement by political opponent suggesting that the other may have been a Nazi war criminal was not actionable). And comments are found to be protected opinion when made in a forum in which the “audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole.” Info. Control Corp. v. Genesis One Comput. Corp., 611 F.2d 781, 784 (9th Cir. 1980) (citation omitted); see also id.


Here, the allegedly actionable comment was made as part of Ms. Maddow’s show, which         is one of the leading cable news programs in America and the highest rated on MSNBC. Compl. ¶ 22. Plaintiff alleges that MSNBC “caters to and promotes liberal politics” (id. ¶ 19) and that Ms. Maddow “is a liberal television host” (id. ¶ 30).  Her comment must therefore be examined in the broad context of what Plaintiff itself characterizes as an opinion-laden, politics-focused discussion on an evening cable news show. See id. ¶¶ 19, 30. In this context, an “average” viewer would understand Ms. Maddow’s statements as being colorful commentary on The Daily Beast’s reporting, Norse, 991 F.2d at 567—not asserting facts regarding the ownership and financing of OAN or whether it is guilty of treason.

When the suit was dismissed, Judge Cynthia Bashant declared: “Maddow’s show is different than a typical news segment where anchors inform viewers about the daily news. The point of Maddow’s show is for her to provide the news but also to offer her opinions as to that news.”

THR was there to trumpet that decision, bragging in the headline of an October 22, 2019 piece by Eriq Garnder: “Rachel Maddow: ‘Russian Propaganda’ Just Opinion; Defamation Suit Fails.”

Now, here were highlights Cullins picked out of the identical legal argument employed by Fox lawyer Erin Murphy (click “expand,” emphasis mine):

Fox News wants U.S. District Court Judge Mary Kay Vyskocil to toss the complaint, arguing both that nothing Carlson said is defamatory because it can't be interpreted as stating actual facts and that McDougal can't prove he acted with actual malice, which she must to succeed on her claims because she's a public figure.

Fox News' attorney Erin Murphy argued that Carlson repeatedly couched his statements as hypotheticals to promote conversation and that a reasonable viewer would know his show offers "provocative things that will help me think harder," as opposed to straight news.

"What we’re talking about here, it’s not the front page of The New York Times," said Murphy. “It’s Tucker Carlson Tonight, which is a commentary show.”

While discussing what constitutes reckless disregard for the truth in regard to the actual malice standard, Judge Vyskocil asked Murphy, "Does somebody in Mr. Carlson’s position have the duty of inquiry?"

Murphy replied, "Not as to an actual malice standard. The Supreme Court could not be clearer." She argued malice isn't a negligence standard, and "failure to investigate" the truth of a statement doesn't suffice. 

The Fox News lawyer also argued that even if Carlson were aligned with Trump, that's not enough, and you can't reach the actual malice standard "just by saying someone has motive for lying."

Between the notion that there’s a difference between news and opinion shows and how opinion shows are meant to drive and provoke further discussion and inquiry, it sure sounds like Murphy was doing the exact came thing as MSNBC’s legal team.

Unfortunately, THR only seemed intrigued and okay with those claims when a liberal network did it versus FNC.