The case that could be Fox’s next dominance

The case that could be Fox's next dominance

Of all the distortions and paranoia that Tucker Carlson promoted on his canceled Fox News program, there’s one big one: a conspiracy theory that an Arizona man working as a secret government agent Jan. 6, 2021 instigated the attack on the Capitol. and former President Donald J. Defamed Trump and his political movement.

What is known about the man, a two-time Trump voter named Ray Epps, is that he participated in demonstrations in Washington that day and the night before. He was caught on camera urging the crowd to march with him and enter the Capitol. But at other points, he appeals for calm when it becomes clear that the situation is turning violent. He can be seen moving past a line of Capitol Police on barricades, but he never actually goes inside the Capitol.

Federal prosecutors have not charged Epps with any crime, focusing instead on more than 1,000 other protesters who took violent actions or were encroaching on the Capitol. However, a detailed Justice Department investigation into the attack is still open and Mr Epps could still be convicted.

Yet for more than 18 months, Mr. Carlson insisted that the lack of charges against Mr. Epps could only mean one thing: He was being shielded because he was a secret government agent. “There was no rational explanation,” Mr. Carlson told his audience, why this “mysterious man” who “helped stage-manage the rebellion” was not charged.

He repeated Mr. Epps’ name over and over again in about 20 episodes and imprinted it on the minds of his viewers.

Mr. Epps was in the Marine Corps, but he said in his January 6 deposition before the committee that he had never worked on behalf of any government agency. He and his wife, Robin, have fled Arizona and are hiding in another state, having sold their wedding venue business and farm after receiving death threats from people who believe in the conspiracy theory. And given that prosecutors are still opening new cases regarding January 6, their legal threat is far from over.

Now lawyers representing Mr Epps and his wife are moving forward with plans to sue Fox News for defamation. “We informed Fox in March that if they did not issue a formal on-air apology, we would pursue all available avenues to protect Apps’ rights,” said Michael Teeter, a lawyer for Mr. Apps, who shut down the network. Tha- A letter requesting an on-air apology and refund. When Mr. Tater did not hear from Fox about his request, he began preparing the suit. “That’s our intention.”

Mr Epps declined to comment on his potential lawsuit. A Fox News spokeswoman declined to comment.

Mr. Carlson also declined to comment. But he continues to push the false impression that the January 6 attack was orchestrated by anti-Trump elements within the government. On a podcast last week, Mr Carlson claimed the riot “wasn’t an insurrection” and that the crowd that day was “full of federal agents.”

First Amendment experts say Mr. Epps has a viable defamation case — reminiscent of a lawsuit the network recently settled with Dominion Voting Systems for $787.5 million, a case involving Fox News over an extended period of time. focused on several instances of false statements made on the programs.

If Mr. Eppes moves forward, the case would be another legal complication and reputational stain for the conservative network, which is facing a growing list of lawsuits related to the broadcast of false claims about the 2020 election and its results. These include a $2.7 billion lawsuit from another voting technology company, Smartmatic, and two separate claims from shareholders of Fox Corporation. Another lawsuit from a former producer for Mr. Carlson, which Fox settled on June 30 for $12 million, alleged that he condoned and encouraged a toxic workplace.

The defamation suit by Mr. Epps would be further evidence of how Mr. Carlson continues to be a headache for Fox even after the network has relieved him of anchoring duties. Fox executives removed him from the broadcast after his text messages, which became public as part of the Dominion lawsuit, revealed that he had expressed hateful and racist sentiments.

On air, his behavior began to irk senior Fox executives such as Lachlan Murdoch, chief executive of Fox Corporation, who disliked Mr. Carlson’s frequent promotion of conspiracy theories about January 6, which have been voiced by including Senator Mitch McConnell. Republicans rebuked. On the day he was informed that his show was cancelled, Mr. Carlson was planning to run another segment on Mr. Epps, According In a tweet by Chadwick Moore, the host’s official biographer.

By design, defamation law is heavily skewed in favor of the news media, making it difficult to find public figures liable for defamation—who are often the targets of media reporting—unless there is proof. The defendants either knew that what they said was wrong or did not do so. Reckless disregard for the truth. Mr. Epps will be able to argue that Mr. Carlson repeatedly made statements about him from October 2021 to March 2023 that were unfounded, or easily explained or refuted by facts stated in multiple news reports.

Rodney Smola, president of the Vermont Law School and defamation expert, said, “His challenge to a judge, if he does file a lawsuit, is to say it’s so natural, bizarrely impossible that only a careless person would do it.” will be put into practice.” who counseled for Dominion during its case against Fox News.

“No matter is easy,” said Mr. Smola, “but this matter is certainly, in my view, viable.”

Attacks against Mr. Epps began to circulate online after a video taken the night before the Capitol attack. It shows Mr Epps shouting at a pro-Trump demonstration on a Washington street that they plan to march to the Capitol and enter. After pausing for a few seconds, he says, “Calmly.” Some in the crowd chanted “Fed!” They start raising slogans. Irrigated! Irrigated!” at it, indicating that he was a government agent trying to incite Trump supporters to commit crimes.

Another video taken on 6 January also shows Mr Epps encouraging people to march towards the Capitol. He then bends down to whisper in a man’s ear, before overpowering the man and riot police officers and breaching the security perimeter around the Capitol grounds. It’s hard to hear what Mr. Epps is saying in the video.

Law enforcement immediately took note of Mr Epps’ suspicious behavior and put his picture on an online wanted list. Mr. Epps has said that he called the FBI’s National Threat Operations Center shortly after the alert was issued, and his phone records show that he spoke with agents there for about an hour.

When the bureau removed him from the list — months after agents formally interviewed him and his son in the spring of 2021 — Mr. Carlson and others claimed that Mr. Epps’ disappearance and lack of criminal charges meant That the government was protecting them.

In his programs, Mr. Carlson claimed that Mr. Epps was a liar and demanded that he be arrested. In a segment that Fox News ran shortly before Mr. Carlson’s show was canceled in April, he showed viewers an image of the FedEx logo that had been changed to say “FedApps”.

The fact that Mr. Epps has not been charged is largely in keeping with the hundreds, if not thousands, of individual rulings the Justice Department has made in its extensive investigation of the Capitol attack.

Only a handful of people who crossed the barriers at the Capitol but never went inside the building have faced charges, and no defendants have been charged with incitement. Given this, it will be particularly difficult to prove allegations of incitement against Mr Epps Eventually they tried to reduce the crowd, And his most vocal encouragement to enter the building occurred the night before the attack, making it nearly impossible to show that his words had an immediate effect.

What Mr. Epps whispered to the man on the day of the attack has been answered three different times: The FBI conducted an interview with the man Mr. Epps spoke to, Ryan Samsell, In Mr. Epps’ own interview with the officers; and in a podcast interview with a co-respondent in Mr. Samsell’s case. All three said that Mr. Epps had urged Mr. Samsell to calm down.

According to a recording of his interview with the FBI, Mr. Samsell said, “He came over to me and he said, ‘Man’ – his full words were ‘Relax, the police are doing their job. ‘”

Mr. Carlson, in his legal defense, may point to inconsistencies in Mr. Samsell’s account. He may also note that Mr. Epps sent a message to a family member long after the riot ended, saying that he had helped “orchestrate” the movement of people toward the Capitol.

(In recent weeks, Mr. Samsell has suddenly changed his story. From prison, he has begun calling reporters — mostly right-wing media outlets — to say that he lied to the FBI and that Mr. Epps told him to do so. Barricades. However, Mr. Samsell acknowledged to The New York Times that he had not provided this new story to prosecutors under oath.)

There are also unresolved legal questions about whether Mr. Epps has actually suffered reputational damage, if only those with whom he presumably lost respect think that Jan. 6 was a just cause.

David A. Logan, former dean of the Roger Williams School of Law, said, “If I were Tucker Carlson’s lawyer, I would question whether Apps should be able to claim defamation when people who think less of him are criminals.” Are ?”

“Courts have had to grapple with this exact question,” he added, pointing to hypotheticals such as a man who is sued on false allegations that he is gay or an anti-abortion activist who claims alleges that she was wrongfully accused of performing an abortion.

Mr. Carlson could also count on the vague and indirect language he sometimes used to describe Mr. Epps. For example, he stated at various points that he was not convinced that Mr. Epps was in fact a double agent, admitting, “We don’t know anything about him.”

An indictment of Mr. Epps could also complicate his defamation case, making any claims for reputational damage more difficult. “The centerpiece of a defamation case is the alleged harm to reputation, so it can certainly be difficult to prove that you suffered harm if your reputation is already damaged because of truthful information,” Ronnell Anderson Jones, a professor at the University of Utah’s SJ Quinney College of Law. “But the questions are often complex.”

Only if a judge allows a case to proceed, Mr. Logan said, will his lawyers know how strong their position is.

“Unlike Dominion, without being sued by Epps and conducting extensive discovery, we cannot be certain that Tucker Carlson had any doubts about the veracity of the allegations,” Mr. Logan said. “Or that similar suspicions moved up the corporate chain.”

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