UPDATE (Wednesday, July 12, 2023, 4:23 p.m. ET): Ray Epps has filed a defamation lawsuit against Fox News over Jan. 6 conspiracy theories promoted by Tucker Carlson.
Remember the historic defamation settlement Dominion Voting Systems secured against Fox News?
Well, the network could be in for another big lawsuit related to the 2020 election.
The New York Times reported Monday that such a suit could come via Ray Epps, the target of a conspiracy theory promoted by Tucker Carlson before the network fired the host in April. On the air in prime time, Carlson pushed the notion that Epps was a secret government agent who worked to gin up the Jan. 6 attack, to the detriment of Donald Trump and his followers.
There’s reason to doubt the veracity of that accusation against Epps, a Trump voter. He was captured on camera urging people to march on the Capitol but then pleaded for calm when things turned violent. The Times noted that Epps hasn’t been charged, though the Jan. 6 investigation remains open. The absence of charges has helped fuel the conspiracy theory.
At any rate, the Arizona man disputes Carlson’s claims so much that he might sue for defamation. He and his wife are in hiding in another state after receiving death threats, the Times reported. (The newspaper said Epps declined to comment on the potential lawsuit and that both Carlson and a Fox News spokeswoman declined to comment.)
So, if Epps sues, will this be Fox’s next Dominion?
It’s too early to know that. But the voting machine company had an absurd amount of evidence that led to an eye-popping $787.5 million settlement. Defamation suits can pose great hurdles for plaintiffs to prove defendants knew they weren’t telling the truth or recklessly disregarded the truth. What made the Dominion case stand out was the sheer volume of damning evidence.
"The Dominion case made a market for Fox lawsuits and people who felt they have been mistreated saw, look we have them admitting there was a problem, we have the evidence from that discovery that was made public" – @nickconfessore w/ @NicolleDWallace pic.twitter.com/FPi2YX2SAe Of course, we got a better picture of how stunningly strong Dominion’s case was against Fox News as the litigation progressed, before the parties settled at the last minute. That evidence included internal Fox communications suggesting that people at the company knew the conspiracy theories were false. (Fox has denied that it knowingly aired anything untrue, and the judge overseeing the lawsuit ruled that the network’s liability remained an open question.) So if Epps’ claim proceeds, we’d want to see what evidence there might be in that regard. And, as the Times’ report notes, the damages Epps would be able to prove if he wins in court is an open question. The good news for Epps is he might not have to amass the level of evidence Dominion gathered in order to prevail against the network. After all, a First Amendment expert who consulted for Dominion during the Fox suit told the Times that Epps would have a “viable” case. How viable remains to be seen, but this could be an important lawsuit to watch if it actually moves toward court.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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